LIBRARY 


UNIVERSITY   OF  CALIFORNIA. 


Received 
Accessions  No. 


58- 


^•^^^^]/A 

'    .':•''••-'  \:-'-'~~    '  '"  ' '  mjj5&ji  ''.*   '  '••',»•  I 

'•'•^!^ 

.  -      •  "'•••  'is i  -r.    9  '- 1  -  *'-v       • .-;  ,  EE 


• 

^^•i^--M;:,.o 

/. .  ••      •         '      -•     •-.  -  ••    •    .' 


'•  ^-K''  J : 


A--^ 


TEXTS. 


"  THIS  Union  must  be  a  voluntary  one.  and  not  compulsory.  A  Union  upheld 
by  force  would  be  a  despotism."  — W.  H.  SEWARD,  1844. 

"  THE  States  were,  before  the  Union  was.  *  *  Our  federal  Republic  forever 
must  exist  through  the  combination  of  these  several  free,  self-existing,  stubborn 
States."— W.  H.  SEWARD,  1865. 

"  THE  only  parties  to  the  Constitution,  contemplated  by  it  originally,  were  the 
thirteen  confederated  States."  —  D.  WEBSTEB,  1819. 

"  THE  Constitution  is  the  only  bond  of  the  union  of  these  States." 

D.  WEBSTER,  1850. 
"THE  States  are  united,  confederated."  —  D.  WEBSTER,  1850. 

"  THE  States  never  conceived  the  idea  of  consolidating  themselves  into  one  gov- 
ernment," or  of"  ceasing  to  be  Maryland  and  Virginia,  Massachusetts  and  Caroli- 
na. *  *  I  hope  never  to  see  the  original  idea  departed  from."  —  D.  WEBSTEB,  1852. 

"  A  Union  of  co-equal  sovereign  States  requires,  as  its  basis,  the  harmony  of  its 
members,  and  their  voluntary  co-operation  in  its  organic  functions." 

E.  EVERETT,  1860. 
"  THE  Constitution  in  all  of  its  provisions  looks  to  an  indestructible  union  of 

indestructible  States."  —  Federal  Supreme  Court,  per  CHASE,  C.  J.,  1868. 

"  IN  fact  and  in  theory,  the  Union  is  an  association  of  States,  or  a  confederacy." 
The  States  are  "  the  parties  to  the  compact."  — HAMILTON,  Federalist,  9  and  85. 

"  THE  States  are  regarded  as  distinct  and  independent  sovereigns  *  *  by  the 
Constitution  proposed."  "  Each  State  in  ratifying  the  Constitution  is  considered  as 
a  sovereign  body,  independent  of  all  others,  and  only  to  be  bound  by  its  own  volun- 
tary act.  In  this  relation,  the  new  Constitution  will  be  a.  federal  and  not  a  national 
Constitution."  "  The  federal  and  state  governments  are  in  fact  but  different  agents 
and  trustees  of  the  people,  intrusted  with  different  powers."  — 

MADISON,  Federalist,  articles  40,  39,  and  46. 

"  THE  business  of  the  federal  convention  *  *  comprehended  the  views  and 
establishments  of  thirteen  independent  sovereignties."  —  JAMES  WILSON. 

"  THE  Constitution  was  a  compact,  not  between  individuals,  but  between  po- 
litical societies  *  *  each  enjoying  sovereign  power,  and,  of  course,  equal  rights." 

GOUVERNEUR  MORRIS. 

"  THE  government  of  the  United  States  was  instituted  by  a  number  of  sovereign 
States  for  the  better  security  of  their  rights."  —  EOGER  SHERMAN. 

"  THE  sovereit 
boundaries  thereof."  — CONSTITUTION  OF  NEW  YORK. 

"  THE  people  of  this  commonwealth  have  the  sole  and  exclusive  right  of  govern- 
ing themselves,  as  a  free,  sovereign  and  independent  State." 

CONSTITUTION  OF  MASSACHUSETTS. 
"  THE  American  Flag  must  wave  over  States  —  not  over  provinces." 

KUTHERFORD  B.  HATES. 

See  also  the  statements  of  the  leading  fathers  herein,    p.  42-50. 


THE 


REPUBLIC    OF   REPUBLICS; 


OR, 


AMERICAN    FEDERAL   LIBERTY. 


BY   P.   C.  CENTZ,   BARRISTER. 
<J, 


FOURTH    EDITION. 


"  It  [i.  e.,  the  republic  of  republics]  is  an  assemblage  of  societies  that  constitute  a  new  one, 
capable  of  increasing  by  new  associations."  —  Montesquieu. 

"  They  will  form  together  a  federal  republic."  "  The  sovereignty  of  each  member  is 
preserved,"  though  there  is  "  constraint  on  the  exercise  of  it,  in  virtue  of  voluntary  engage- 
ments." —  Vattel. 

See  page  332  of  this  volume;  also  page  42  et  seq. 


UNIVERSITY 


BOSTON: 
LITTLE,  BROWN,  AND   COMPANY. 

1881. 


Copyright,  1881, 
BY  EDWARD  AVERT. 


UNIVERSITY  PRESS: 
JOHN  WILSON  AND  SON,  CAMBRIDGE. 


PEEFACE. 


"  I  ^HE  theory  of  this  work  is  precisely  that  upon  which  the 
-*•  anti-slavery  sentiment  of  the  country  based  itself,  in  op- 
posing the  extension  of  slavery,  the  fugitive  slave  law,  and, 
indeed,  slavery  itself ;  while  it  supports  the  action  (except  nulli- 
fying), of  those  states  which  have  from  time  to  time  defended 
themselves  against  federal  excesses. 

The  author  is  one  who  never  held  or  wished  for  office ;  who 
belongs  to  no  party ;  and  who  pleads  to  save  the  palladium  of 
all  his  blessings  —  his  commonwealth. 

In  1865,  Andrew  Johnson,  filled  with  the  motives  and  feelings 
of  the  war,  and  surrounded  by  detectives,  spies,  Stantons,  and 
Holts,  believed  Davis  to  be  a  traitor,  who  sought  the  destruction 
of  "  the  government,"  starved  federal  prisoners  at  Andersonville 
and  elsewhere,  and  procured  Lincoln's  death. 

It  was  then  that  he  uttered  the  celebrated  threat  of  "  making 
treason  odious  by  hanging  traitors  "  ;  and  for  a  time,  even  if  it 
was  not  contemplated,  it  was  feared  that  a  military  commission 
would  be  used  as  the  machinery  of  trial  and  punishment.  But, 
as  Davis  and  the  other  leading  confederates  were  prisoners  of 
war,  and  protected  by  the  jus  gentium,  the  policy  seemed  to  be 
adopted  of  turning  them  over  to  the  civil  authorities,  for  trial 
-  if  conviction  could  be  assured  ;  or  for  other  disposal,  as  here- 
after indicated. 

The  North  was  full  of  bitterness  and  vengeful  spirit.  Senti- 
ments like  the  following,  were  heard  from  many  leaders  :  "  Ee- 
bels  have  no  rights  but  to  be  hung";  "The  army  has  convicted 
—  only  execution  remains."  But  the  soberer  judgment  of  pre- 


iv  PREFACE. 

dominant  men  was  more  humane,  and  the  moral  sense  of  the 
country  and  the  world  favored  a  trial  of  some  sort,  though  few 
comparatively  could  patiently  contemplate  the  chances  of  ac- 
quittal. The  following  from  the  New  York  Times  shows  the 
prevailing  views  and  feelings,  and,  at  the  same  time,  the  danger 
of  losing  the  great  principles  involved.  Advocating  civil  trial, 
and  presuming  it  would  come,  that  journal  said :  "  We  have  no 
fear  that  Jeff  Davis  will  be  acquitted  on  the  merits  of  the  case, 
as  they  will  be  expounded  by  the  chief  justice,  who  will  try 
him.  ...  If  Davis  is  convicted,  the  constitution,  as  understood 
by  the  loyal  people  of  the  land,  will  be  vindicated,  and  the  su- 
premacy of  the  national  authority  forever  established  in  law,  as 
well  as  fact." 

Presuming  that  there  must  be  a  large  class  of  Sewards,  Chases, 
Greeleys,  Gerrit  Smiths,  Bateses,  Everetts,  Trumbulls,  Stans- 
berrys,  etc.,  who,  as  peace  grew  older  and  reflection  came,  would 
arise  and  influence  public  opinion,  the  author  sent  from  London, 
in  the  summer  of  1865,  the  first  edition  of  this  work,  in  the 
shape  of  a  "  protest "  against  the  trial  of  the  confederate  chiefs 
by  military  commission ;  and  an  argument  —  which  was  really 
that  of  the  fathers,  the  author  merely  compiling  —  showing  that 
the  law  and  the  testimony  were  in  their  favor,  and  that  they 
could  not  be  convicted  even  by  a  court  and  jury.  It  was  sent 
to  all  the  conspicuous  men  in  and  out  of  the  administration. 

The  following  telegram  to  the  Philadelphia  Ledger,  is  selected 
to  show  the  estimate  in  which  the  work  was  held  by  some  in 
Washington :  "  A  most  important  argument  has  been  received 
by  the  president  from  London,  in  which  are  set  forth  the  reasons 
why  Davis  cannot  be  convicted  in  any  court,  of  the  crime  of 
treason,"  etc.,  etc.  Concerning  it,  Mr.  Charles  O'Conor  wrote  the 
author,  Dec.  10,  1865  :  "If  upon  the  numerous  points  that  any 
lawyer  can  readily  see  in  the  case,  I  had  so  admirably  prepared 
and  overwhelmingly  conclusive  a  brief  as  the  protest,  my  task 
[of  defending  Davis]  would  be  slight  indeed."  And  the  Mobile 
Register  noticed  it  as  follows  :  "  This  treatise  is  an  extraordinary 
work,  considering  that  it  is  written  by  an  English  lawyer.  It 
exhibits  profound  acquaintance  with  the  history  and  philosophy 
of  the  constitution." 


PREFACE.  V 

It  should  be  explained,  en  passant,  that  the  work  purported 
to  be  the  monograph  of  P.  C.  Centz,  Barrister. 

Some  have  thought,  perhaps  erroneously,  that  the  president 
and  his  advisers  were,  by  it,  induced  to  pause,  and  convoke  lead- 
ing jurisconsults ;  who  actually  met,  and  after  much  study  and 
thought,  reported  that  Davis  must  be  civilly  tried  if  at  all ;  but 
that  probably  he  could  not  be  convicted.  Among  the  state- 
ments on  this  subject,  the  following  is  selected  from  a  most  in- 
teresting letter,  written  in  Eichmond  to  the  Norfolk  Virginian, 
and  published  in  1873  :  — 

"  Another  event  of  great  historical  interest,  in  which  Judge 
Clifford  participated,  was  the  solemn  consultation  of  a  small 
number  of  the  ablest  lawyers  of  the  North,  at  Washington,  a  few 
months  after  the  war,  upon  the  momentous  question  as  to  whether 
the  federal  government  should  commence  a  criminal  prosecution 
against  Jefferson  Davis  for  his  participation  and  leadership  in 
the  war  of  secession.  In  this  council,  which  was  surrounded  at 
the  time  with  the  utmost  secrecy,  and  which  has  never  yet  been 
described,  was  U.  S.  attorney-general  Speed,  Judge  Clifford, 
William  M.  Evarts,  and  perhaps  half  a  dozen  others,  who  had 
been  selected  from  the  whole  northern  profession  for  their  legal 
ability  and  acumen  ;  and  the  result  of  their  deliberation  was  the 
sudden  abandonment  [of  the  idea  of  prosecution],  in  view  of 
the  insurmountable  difficulties  in  the  way  of  getting  a  final  con- 
viction, which  were  revealed  by  their  patient  study  of  the  law 
bearing  upon  the  case." 

Notwithstanding  the  "  sudden  abandonment "  in  secret,  change 
of  intention  was  not  allowed  to  transpire ;  and  the  defence  were 
compelled  to  keep  in  readiness  until  1869.  During  all  this  pen- 
dency of  the  case,  President  Johnson  and  his  cabinet  seemed  to 
evade  a  trial  by  jury,  but  meanwhile  to  aim  at  getting  the  states' 
supreme  court  to  lay  down  a  national  law  of  treason,  so  as  to 
have  a  national  control,  by  a  national  government,  of  national 
citizens,  under  the  penalties  of  national  treason  ;  thus  establish- 
ing that  "  absolute  supremacy,"  of  "  the  government "  over  alle- 
giant  states  and  citizens,  which  the  Philadelphia  convention  of 
1866  anticipatorily  declared.  Henry  J.  Eaymond,  the  writer  of 
the  expression  quoted  above  from  the  New  York  Times,  was  the 
writer  of  the  address  of  the  said  convention. 


vi  PREFACE. 

In  a  letter  from  Mr.  O'Conor  to  the  author  in  London  at  the 
close  of  1865,  is  the  following :  "  To  procure  a  forensic  discus- 
sion of  the  point  so  ably  argued  by  you,  and  a  pre-arranged 
judicial  determination  of  it  by  the  supreme  court,  against  the 
South,  and  in  favor  of  his  national  government,  has  long  been  a 
favorite  project  with  Mr.  Johnson.  He  is  persistently  urged  to 
it  by  his  most  intimate  adviser ;  and  it  is  distinctly  avowed  in 
the  message  just  delivered.  For  a  long  time,  those  who  possess 
means  of  knowing  the  intent  of  the  president  and  his  cabinet, 
have,  almost  without  exception,  asserted  very  positively,  that 
Mr.  Davis  would  be  tried  in  a  civil  tribunal." 

In  the  course  of  time,  Mr.  Davis  was  turned  over  by  the  mil- 
itary to  the  civil  authority ;  and,  finally,  under  a  habeas  corpus, 
admitted  to  bail,  with  Horace  Greeley,  Gerrit  Smith,  and  others 
as  bondsmen,  early  in  1867  ;  and  thenceforward  a  show  of  desire 
and  readiness  to  try  was  kept  up ;  insomuch  that  Mr.  O'Conor 
did  not  abate  his  preparedness  till  the  fall  of  1868  ;  when,  on  a 
motion  to  quash  the  indictment,  the  judges  differed,  and  the 
case  was  certified  up  to  the  states'  supreme  tribunal,  where  it 
was  finally  extinguished  by  President  Johnson's  amnesty  pro- 
clamation, without  any  laying  down  (or  prostrating  ?)  of  the  law 
by  the  said  tribunal. 

To  some,  the  prosecution  seemed  aiming  to  get  around  trial 
by  jury,  and  before  the  supreme  court,  in  order  to  merge  the 
case  in  the  aforesaid  "  pre-arranged  "  decision  ;  but  the  author 
opines  with  diffidence,  that  Seward  and  Chase  secretly  man- 
aged to  prevent  that  predetermined  decree,  which  necessarily 
and  fatally  impugned  statehood ;  they,  if  we  judge  from  their 
history  and  declarations,  being  nothing  if  not  devotees  of  the 
sovereignty  of  the  American  states. 

These  great  men  knew  that  commonwealths  (New  York  and 
Ohio  for  example)  were  integrally  the  citizens  thereof,  and  that 
the  fealty  of  the  citizens  was  the  life  of  the  state  ;  and  that  a 
national  law  of  treason  on  national  citizens,  was  absolute  de- 
struction of  what  they  themselves  called  "  indestructible  states." 
Hence  it  is  presumable  that  they  were  opposed  to  the  above- 
mentioned  design  of  the  president. 

The  adverse  sentiment  was  aided  more  or  less  by  a  large  class 


PREFACE.  vii 

of  northern  minds,  who  steadily  opposed,  not  merely  the  mili- 
tary commission,  but  any  trial.  Conspicuous  among  them  were 
Gerrit  Smith,  Horace  Greeley,  and  ex-governor  John  A.  Andrew 
—  the  latter  expressing  himself  as  follows,  as  is  stated  in  the 
letter  to  the  Norfolk  Virginian,  before  mentioned  :  "  It  cannot 
be  done.  The  criminal  law  has  no  application  here.  .  .  .  When 
a  whole  people  commit  an  act,  rash,  impolitic,  and  direful  though 
it  may  be,  ...  it  is  impossible  to  consider  the  criminal  law  as 
being  framed  to  meet  the  case."  Like  Edmund  Burke,  these 
men  "  knew  of  no  way  to  frame  an  indictment  of  a  whole 
people." 

Meanwhile,  time  was  healing  hurts,  assuaging  sorrows,  mollify- 
ing resentments,  wearing  away  antipathies  and  prejudices  ;  and 
forgiveness  and  conciliation  were  copiously  welling  up  from  the 
bottom  of  the  people's  hearts,  so  that  finally,  in  1868,  Mr. 
Davis's  condemnation,  once  an  easy  task,  became  no  longer  pos- 
sible ;  and  the  case,  as  heretofore  stated,  came  to  a  happy  end. 

What  a  change  !  Underwood,  a  year  or  two  before,  had  said 
to  a  committee  of  congress,  in  reply  to  an  inquiry  if  a  jury 
could  be  packed  —  "  It  would  be  difficult,  but  it  could  be  done. 
I  could  pack  a  jury  to  convict.  I  know  very  earnest,  ardent 
union  men  in  Virginia."  Such  sentiments  did  not,  however, 
long  or  widely  prevail;  and  in  December  1868,  the  New  York 
Tribune  doubted  if  it  was  ever  possible  to  convict  Davis,  "  un- 
less the  jury  had  been  packed,"  and  "  every  democrat  excluded." 
Peace,  with  benign  wings,  was  brooding  over  the  land. 

Providence,  time,  the  better  feelings  of  men,  their  sober  sec- 
ond thoughts,  and  a  myriad  of  moral  forces,  ever  co-work  to  pre- 
serve these  glorious  commonwealths  ;  and  they  now  stand  in 
serene  and  silent  majesty,  observed  of  every  eye,  and  invoking 
the  loyalty  of  every  heart.  Seward  and  Chase  both,  after  the 
war,  with  emphasis  proclaimed  the  states  to  be  "  free,"  "  stub- 
born," "  indestructible."  Their  life  is  independent ;  above  "  gov- 
ernment " ;  and  they  will  not  "  down "  at  the  bidding  of 
murderous  usurpation,  for  their  being  is  that  of  the  people  ;  and 
the  self-defence  of  both  —  the  first  law  of  nature  —  is  identical- 
Perverters  should  cease  to  "  wreck  themselves  against  necessity," 
for,  as  long  as  freedom  is  a  part  of  God's  smile  on  this  continent, 


Vlll  PREFACE. 

the  state  will  be  the  political  form  of  the  people.     Bryant's 
apostrophe  to  liberty  applies  to  the  commonwealth  :  — 

"...     Power  at  thee  has  launched  his  bolts, 

And  with  his  lightnings  smitten  thee  : 
They  could  not  quench  the  life  thou  hast  from  heaven." 

THE   MODE   AND    TESTIMONY   OF   THE   WORK. 

Before  concluding,  it  may  be  well  to  say  that,  wishing  for 
criticism  and  correction  of  error,  the  author  makes  no  apology 
for  the  manner  of  performing  his  task ;  but  takes  occasion  to 
say,  that,  desiring  everybody  to  read  and  believe,  he  has  aimed 
to  use  simple,  direct,  and  untechnical  language,  intelligible  to  all 
classes,  and  to  pile  up  evidences  on  every  contention  of  the 
book,  so  as  to  make  doubt  impossible.  Chapter  VII.  of  Part  I., 
for  example,  decisively  proves  what  all  the  fathers  considered, 
and  the  people  intended,  our  polity  to  be.  And  for  such  proofs, 
the  statements  of  the  deputies  who  devised,  and  the  people 
who  ordained  it,  are  used,  rather  than  the  dicta  of  the  admin- 
istering agents,  who  became  interested  alike  in  its  success  and  in 
their  own  further  emoluments,  and  who  began  those  assumptions 
of  ungranted  powers,  which  have  since  well-nigh  proved  fatal. 

And  upon  this  matter,  it  is  well  further  to  state,  that  as  the 
great  inquiry  is  one  of  fact,  much  care  is  taken  to  select  the 
best  testimony.  After  the  federal  system  went  into  effect,  party 
spirit,  the  desire  of  office,  and  the  possession  and  use  of  public 
power  and  money  (so  perverting  to  the  judgment  and  lowering 
to  the  morals),  made  the  administrators  of  the  government  tend 
to  become  unfit  for  witnesses ;  and  it  is  deemed  unjust  to  them- 
selves, as  well  as  to  the  cause  of  institutional  liberty,  to  use 
their  statements.  Indeed,  if  tested  by  interest,  courts  would 
reject  them.  Therefore  the  views  of  Hamilton,  of  Madison,  and 
even  of  the  great  and  good  Washington,  are  not  used,  where 
they  expressed  them  as  officials,  interested  in  the  successful 
working  of  the  great  experiment. 

Henry,  Martin,  Lowndes,  Yates,  Lansing,  et  id  omne  genus, 
are  rejected,  because,  as  enemies,  they  appealed  to  the  people's 
fears,  and  denounced  the  system  —  not  only  making  erroneous 
or  over-stated  objections,  but  yielding  in  no  degree  to  decisive 


PREFACE.  IX 

refutations,  made  by  those  who  were  in  the  convention  of  1787, 
and  knew  the  real  intent  of  that  body,  as  well  as  the  meaning 
of  the  instrument. 

Jefferson  is  not  cited  because,  being  abroad,  he  did  not  parti- 
cipate in  the  making  of  the  plan ;  and  because,  upon  its  being 
put  in  operation,  he  gradually  became  a  heated  partisan.  The 
resolutions  of  '98  and  '99"  and  Madison's  report,  are  dispensed 
with,  because,  instead  of  being  the  source  of  state-rights  doc- 
trines (as  their  devotees  seem  to  suppose),  they  are  simply  de- 
ductions or  corollaries  from  the  state-rights  facts  adduced  herein, 
which  cover  the  whole  ground  of  (as  well  as  precede  and  in- 
clude) the  constitution  itself.  No  use  is  made  of  the  masterly 
arguments  of  those  great  men,  Tucker,  Taylor  of  Caroline,  or 
Calhoun,  as  they  are  partisan,  and  furnish  no  apposite  facts. 
Nor  is  the  president,  the  congress,  or  the  federal  supreme  court 
cited,  since  they  can  testify  to  nothing  whatever  to  help  us 
us  to  a  vere  dictum,  on  this  pure  question  of  fact.  Their  dicta 
cannot  even  dent  or  abrade  an  actuality,  let  ^lone  destroy  it. 
Nor  can  they  give  decisions  on  disputes  as  to  political  authority 
between  the  states  and  the  federal  agency  of  the  states,  a  part  of 
which  agency  the  said  functionaries  are.  Their  jurisdiction  can 
only  be  of  questions  "  under  "  the  constitution  of  the  states, 
and  cannot  reach  those  affecting  the  political  existence  and  sove- 
reignty of  its  makers,  —  such  questions  being  most  certainly 
above  it  —  no  matter  whether  the  said  makers  are  the  people  as 
a  nation,  or  the  people  as  states. 

In  short,  no  facts  or  authorities  are  used  in  the  book,  origina- 
ting after  the  federal  system  was  set  in  motion.  The  entire 
draught  is  from  the  head-spring  —  not  a  drop  from  the  turbid 
river  below  !  But  it  is  well  to  say  here  that  current  practice, 
continued  usage,  and  fit  and  timely  explanation  (ever  and 
precisely  based  on  reality  and  truth,  with  construction  of  doubts 
always  and  inexorably  in  favor  of  original  authority)  must  be 
allowed  due  weight  in  the  exposition  of  our  polity. 

THE   SECOND   CENTURY  OF  THE  FEDERAL   SYSTEM. 

We  have  now  a  full  retrospect  of  our  departed  century,  as  to 
its  results  on  our  political  institutions.  Its  lessons  are  imperious, 


X  PREFACE. 

and  if  we  fail  to  learn  and  utilize  them,  we  may  as  well  give  up 
self-government,  and  cry  out,  as  did  the  Hebrews,  "  Give  us  a 
king,"  to  save  ourselves  from  the  war  and  woe  of  his  inevitable 
coming. 

But  in  the  opening  of  the  new  cycle  —  the  second  century  of 
"  federal  liberty  "  1  —  we  have  some  good  auspices.  Certain  sub- 
jugated and  degraded  states  have  recovered  that  equality,  vital 
to  a  voluntary  union  of  republics ;  and  the  head  —  alike  of  the 
federal  agency  and  of  the  supposed  centralistic  party  (President 
Hayes)  —  declares  that  "  The  American  flag  must  wave  over  states 
and  not  over  provinces  "  ;  which  can  only  mean,  that  the  great 
American  revolution,  from  provinces  to  states,  is  not  to  be  an- 
nulled ;  that  henceforth  our  union  will  be  an  association  of  equal 
commonwealths,  governing  themselves  through  agencies  with 
entrusted  powers ;  that  the  means  of  enforcing  said  authority  is 
"  the  mild  and  salutary  coercion  of  the  magistracy  "  [Federalist]  ; 
and  that  the  soldiery  is  no  more  a  part  of  the  government,  than 
the  switch  or  ferule  is  a  part  of  the  parent  or  schoolmaster,  but 
is  an  instrument  of  the  civil  power,  to  be  used  as  a  last  resort. 

IN   CONCLUSION, 

it  is  to  be  hoped  that  the  American  people  will  speedily  come 
again  to  know  and  feel  that  they  are,  in  form,  and  life,  and  ac- 
tion, an  association  of  republics ;  and  to  recognize  their  duty  of 
preserving  their  sacred  heritage  and  trust  of  liberty  against  cen- 

1  This  phrase  was  used  by  James  Wilson,  to  express  the  liberty  that  free 
states  enjoy  under  their  league.  "  The  definition  of  civil  liberty,"  said  he,  "  is, 
briefly,  that  portion  of  natural  liberty,  which  men  resign  to  the  government 
[i.  e.  to  society],  and  which  then  produces  more  happiness  than  it  would  have 
produced  if  retained  by  the  individuals  who  resign  it  ;  —  still,  however,  leaving 
to  the  human  mind  the  full  enjoyment  of  every  principle  that  is  not  incompatible 
with  the  peace  and  order  of  society.  Here  I  am  easily  led  to  the  consideration 
of  another  species  of  liberty,  which  has  not  yet  received  a  discriminating  name, 
but  which  I  will  venture  to  term  federal  liberty.  This,  sir,  consists,  in  the  ag- 
gregate of  the  civil  liberty  which  is  surrendered  [i.  e.  delegated]  by  each  state  to 
the  national  government  [i.  e.  to  the  United  States]  ;  and  the  same  principles 
that  operate  in  the  establishment  of  a  single  society,  with  respect  to  the  rights 
reserved  or  resigned  by  the  individuals  that  compose  it,  will  justly  apply  in  the 
case  of  a  confederation  of  distinct  and  independent  states."  [See  Connecticut 
Courant,  Dec.  24,  1787.] 


PREFACE.  XI 

tralization.  The  fundamental  laws,  which  the  states  have  sev- 
erally and  federally  established,  seem  once  more  to  be  in  accord 
with  the  tones  of  the  old  bell  which,  on  the  4th  of  July,  1776, 
"  proclaimed  liberty  throughout  the  land."  All  patriotic  hearts 
and  hopes  are  in  harmony,  and  our  only  political  discords  are 
the  usurpations  and  excesses  of  those  ephemeral  creatures  who 
fly,  for  a  measured  while,  with  imparted  strength,  in  the  sun- 
shine of  popular  favor  —  creatures  who,  as  subjects  and  chosen 
servants  of  the  commonwealths,  are  sworn  to  keep  within  those 
written  limits  which  they  daily  transcend. 


CONTENTS. 


PART  I. 
A  GENERAL  VIEW. 

CHAPTER  I.  — INTRODUCTORY.  PAGE 

The  separateness  of  the  states  from  their  origin 3 

Each  body  must,  if  independent,  be  sovereign 3 

The  constitution  provides  for  a  union  of  states 4 

It  is  a  constitution  of  government  by  states 6 

It  is  a  part  of  the  machinery  of  self-government 6 

The  federal  government  is  not  over  the  states 5 

The  danger  of  giving  it  supreme  power 6 

The  character  and  purpose  of  suffrage 7 

Solemn  warning  from  Edmund  Burke 7 

CHAPTER  II.  —  PERVERSION. 

All  political  power  inherent  in  the  people 9 

The  doctrine  of  the  fathers 9 

The  doctrine  of  the  perverters 12 

The  self-consolidation  of  the  government 13 

Caesarism 13 

"  Let  us  have  peace  " 14 

Will  our  peace  be  of  contentment  or  force  ? 14 

CHAPTER  III.— HISTORY  REPEATS  ITSELF. 

Perversion  has  made  a  spurious  constitution 16 

Expounders  using  refuted  charges  as  expositions 16 

Usurped  control  of  suffrage 17 

The  American  "  divine  right " ,     .  18 

The  imported  theory  of  the  social  compact 18 

A  Roman  chapter  of  American  history 19 

CHAPTER  IV.  —  SECESSION  AND  COERCION. 

No  constitutional  coercion  of  states 23 

The  only  basis  of  coercion 23 

Secession  is  an  act  under  the  jus  r/entium 24 

Coercion  is  justifiable  under  the  same  law 25 

Our  system  as  thus  modified 25 

Two  important  ideas 26 


xiv  CONTENTS. 

CHAPTER  V.  — REBELLION  OR  NOT. 

Were  the  confederates  rebels  and  traitors  ? 28 

The  federal  compact  vindicates  them 29 

Strong  corroborations 30 

Coercion  of  states  is  war  against  them 31 

The  nation  is  states  —  governments  are  creatures 31 

Uncle  Sam  taught  Davis  and  Lee  secession 32 

CHAPTER  VI.  —  REBELLION  OR  NOT.     (Continued.) 

Patriotism  is  love  of  one's  state 34 

The  patriotism  the  fathers  felt  and  taught 34 

Davis  and  Lee  no  traitors 36 

Absurd  views  of  sovereignty 36 

States  alone  were  responsible  for  secession  and  war 37 

And  states  alone  were  punishable 38 

The  atonement  was  complete 39 

The  jus  gentium  protected  confederates 39 

The  legitimate  conclusions 40 

CHAPTER  VII. —  THE  ARCHITECTS'  IDEA  OF  THE  EDIFICE. 

The  perversion  to  be  exposed 41 

The  inquiry  is  one  of  fact 42 

Testimony  of  the  writers  of  "  The  Federalist " 42 

The  statements  of  Washington  and  Franklin 44 

The  testimony  of  the  five  next  in  rank 45 

Another  decade  of  witnesses       46 

Only  a  federation  of  sovereignties  was  possible 48 

Professors  of  fact,  as  well  as  of  law,  wanted 49 

CHAPTER  VIII.  — THE  SUBJECT  is  FACTS. 

Interpretation  comes  after  establishment 50 

So-called  schools  of  interpretation       50 

The  chief  expounders 52 

The  "  school "  was  one  of  perversion 62 

"  School "  is  a  misnomer  except  in  the  sense  of  flock 53 

A  passing  tribute  to  the  old  Bay  state 54 

Averments  of  fact  —  skeleton  of  argument 55 

1.  The  republic 65 

2.  The  republic  of  republics 56 

3.  Citizenship  and  allegiance 66 

4.  Treason 56 

True  patriotism  is  fidelity  to  the  commonwealth 67 

Government  is  mental  and  functional  action 57 

The  minds  of  the  political  bodies  still  live 67 

CHAPTER  IX.  —  CONCLUSIVE  EVIDENCE. 

Webster's  statement  in  1819 59 

The  testimony  of  Massachusetts 60 

The  object  of  government 60 

The  social  compact 60 

No  sovereignty  in  government  —  all  functionaries  agents      ....  61 

The  state  can  change  government  at  will 61 

The  state  to  remain  sovereign  over  government 61 

New  York  testifies  idem  sonans 61 

Lordship  of  the  soil,  or  eminent  domain 62 

Federal  sites     ,  .  63 


CONTENTS.  XV 

Summing  up  the  testimony 63 

The  constitution  is  law  in  a  state  by  her  will 64 

Exposure  of  the  fallacy  of  a  new  social  compact 64 

Politically  the  people  exist  and  act  as  a  state < 

The  stumbling-block  of  the  expounders < 

The  sacred  ties  according  to  Washington 66 

The  sacred  ties  according  to  Jackson  and  Burke 67 

The  union  is  only  voluntary  engagements 67 

"  Union  and  liberty,  now  and  forever < 

Let  us  preserve  the  commonwealths J 

Let  all  declare  the  true  principles  of  liberty 

The  states  are  now  provincialised 

Invocation by 


PART  II. 

FEDERALISATION. 

CHAPTER  I.  — THE  ACTORS  — THEIR  MOTIVES  AND  PURPOSES. 

Statehood  to  remain  intact 74 

The  chief  aims  of  the  states 75 

The  principal  changes  contemplated 76 

Preliminary  remarks  on  federalisation 77 

CHAPTER  II. — MASSACHUSETTS  FEDERALISES  HERSELF. 

The  order  and  date  of  her  ratification  ;  and  her  vote 79 

The  substance  of  the  objections 79 

Her  statesmen  denounce  consolidation 80 

The  severally  and  the  sovereignty  of  the  states       82 

"  We  the  people  "  means  Massachusetts 82 

What  her  statesmen  said  "  we  the  people  "  meant 83 

The  fear  of  losing  statehood 85 

She  proposes  the  tenth  amendment 85 

The  amendment  a  truism  though  useful 86 

The  sole  ordaining  was  by  Massachusetts 88 

Her  ratification 88 

CHAPTER  III.  —  CONNECTICUT  FEDERALISES  HERSELF. 

The  order  and  date  of  her  ratification ;  and  her  vote 89 

What  her  statesmen  said 89 

"  We  the  people  "  means  Connecticut 90 

Her  ratification 90 

CHAPTER  IV.  —NEW  YORK  FEDERALISES  HERSELF. 

The  order  and  date  of  her  ratification  ;  and  her  vote 92 

What  her  statesmen  thought  of  the  system 92 

Ratification  in  confidence  of  amendments 94 

Decisive  proof  that  "  we  the  people  "  means  New  York 95 

Her  ratification 95 

Her  present  autocratical  declarations 96 


Xvi  CONTENTS. 

CHAPTER  V.  —  NEW  JERSEY  FEDERALISES  HERSELF. 

The  order  and  date  of  her  ratification;  and  her  vote 97 

The  views  of  her  statesmen 97 

.     "  We  the  people  "  of  New  Jersey 98 

Her  ratification 99 

CHAPTER  VI.  —  PENNSYLVANIA  FEDERALISES  HERSELF. 

The  order  and  date  of  her  ratification  ;  and  her  vote 100 

She  associates  as  a  sovereign 100 

Views  of  her  statesmen 100 

Whom  did  she  mean  by  "  we  the  people  "  ? 102 

Her  ratification 103 

CHAPTER  VII.  —  DELAWARE   AND   MARYLAND   FEDERALISE 

THEMSELVES. 

Delaware's  ratification  ;  order,  date,  and  vote 104 

"  We  the  people  "  of  Delaware 104 

Her  ratification 104 

Maryland,  her  ratification ;  order,  date,  and  vote 105 

"  We  the  people  "  of  Maryland 105 

Her  ratification 106 

Luther  Martin's  letter 106 

CHAPTER  VIII.  —  VIRGINIA  FEDERALISES  HERSELF. 

The  order  and  date  of  her  ratification ;  and  her  vote 107 

Virginia  to  remain  a  sovereign 107 

Consolidation  denounced 109 

What  Virginia  meant  by  "  we  the  people  " Ill 

Her  ratification Ill 

Making  assurance  doubly  sure 112 

The  nation  resuming  powers  delegated  by  Virginia 113 

CHAPTER  IX.  —  SOUTH   CAROLINA  AND   GEORGIA  FEDERALISE 

THEMSELVES. 

The  order  and  date  of  South  Carolina's  ratification;  and  her  vote   .  115 

The  explanation  of  the  system  to  her 115 

Views  of  the  Pinckneys  and  Rutledges 115 

"  We  the  people  "  of  South  Carolina 119 

Her  ratification 120 

The  order  and  date  of  Georgia's  ratification ;  and  her  vote      ...  121 

Her  ratification 121 

CHAPTER  X. — NEW  HAMPSHIRE  FEDERALISES  HERSELF. 

The  order  and  date  of  her  ratification  ;  and  her  vote 122 

New  Hampshire's  assertion  of  her  statehood 122 

"  We  the  people  "  of  New  Hampshire 123 

Her  ratification 123 

The  nine  and  sufficient  parties  ratified  the  compact 124 

THE    FEDERAL    SYSTEM    ESTABLISHED    AND    FINISHED 125 

The  convention  unanimous  in  this  view 125 

The  congress  of  states  takes  the  same  view 126 

The  putting  of  the  agency  at  work 125 

The  view  of  congress  as  to  the  system  being  then  completed  .     .     .  126 


CONTENTS.  XVli 

CHAPTER  XI.  —  NORTH  CAROLINA  FEDERALISES  HERSELF. 

Date  of  rejection  of  constitution ;  and  vote 128 

The  order  and  date  of  her  ratification  ;  and  her  vote 128 

Her  idea  of  the  union  expressed  by  Iredell  and  others 128 

The  sovereign  rejects  the  league 131 

The  sovereign  ratifies  the  league 131 

Her  ratification 132 

Washington  vs.  Webster 132 

CHAPTER  XII.  —  RHODE  ISLAND  FEDERALISES  HERSELF. 

Her  rejection  of  the  compact  by  vote  of  her  people 134 

The  order  and  date  of  her  ratification ;  and  her  vote 134 

Her  ratification 134 

Washington's  view  of  the  act 134 

Finis  coronat  opus 134 

THE  REPUBLIC  OF  REPUBLICS 136 

CHAPTER  XIIL  — THE  "EXECUTED"  "DEED." 

A  fatal  admission  of  Mr.  Webster 137 

Now  let  us  see  the  "  deed  "  as  "  executed  " 137 

The  ratifying  words  of  the  "  deed  " 139 

The  complete  federal  system 140 

Here  then  are  the  essentials  of  a  federation 140 

Several  important  reflections 141 

There  is  no  other  history  of  establishment 141 

Gross  pictorial  deception 142 

Exposure  of  the  fallacy 143 

The  more  perfect  union  of  1788 144 

The  identity  of  character  of  the  two  unions  —  diagram  to  face  p.    .  144 

Both  systems  federal  unions 145 

The  separate  wills  of  states  made  both  systems 145 

The  later  federation  the  more  perfect 145 

CHAPTER  XIV.  —  THE  TESTIMONY  OF  THE  CONSTITUTION. 

"What  does  it  say  of  itself  1" 147 

The  testimony  of  the  title  and  preamble 147 

The  "  deed  "  names  and  recognizes  the  states 148 

All  elections  or  powers  are  of  states 149 

The  federal  government  always  vicarious 150 

All  citizens  and  subjects  are  those  of  states 151 

The  union  was  made  to  preserve  the  states 151 

The  wills  of  states  must  live  to  amend 152 

The  same  states  made  both  federal  compacts 152 

The  instrument  says  the  states  are  the  parties 153 

The  "  executed  "  "  deed  " 154 

The  compact  was  done  only  by  states  .     .  ' 154 

No  sign  of  other  theory  than  federation 155 

Only  a  federation  was  possible 156 

"  They  builded  better  than  they  knew  " 156 


xviii  CONTENTS. 

PART  III. 
FALLACIOUS  EXPOSITION. 

CHAPTER  I.  —  CHARGES  AND  EXPOSITIONS  IDENTICAL. 

Testimony  of  Washington,  Hamilton  and  Madison 159 

Comparison  of  charges  and  expoundings 159 

1.  The  states  made  into  one  state 160 

2.  The  change  from  a  federacy  to  a  nation 160 

3.  The  general  government  a  sovereignty .160 

4.  The  government  the  final  judge  of  its  authority 160 

5.  A  state  and  a  county  equal  in  rights 161 

Opposition  of  Henry,  Martin,  Lowndes,  et  alii 161 

The  federal  simulacrum 162 

"  The  Massachusetts  school "  as  the  Sheik  al  Gebel 162 

Judge  Story's  relation  to  these  perversions 162 

Probable  reasons  for  Judge  Story's  error 164 

Were  the  motives  worthy  of  the  occasion  ? 164 

CHAPTER  II. —  WHO  MAKES  "SUPREME  LAW"? 

Interpretation  of  the  "  Massachusetts  school " 165 

"  What  is  our  system  ?  "  is  matter  of  fact 166 

How  the  public  convictions  were  produced 166 

INTERPRETATION  No.  1.— The  Nation  ordained    ....  167 

.      Ignoring,  or  concealing  facts,  does  not  destroy  them 167 

Did  not  the  people,  as  states,  ordain  ? 168 

The  ordaining  instruments 168 

The  compact  required  the  states  to  ordain 169 

The  states  retained  their  sovereignty 169 

No  "  people,"  as  such,  were  to  ordain 170 

CHAPTER  III.  —  FALSE  EVIDENCE  OF  ESTABLISHMENT. 

INTERPRETATION  No.  2.  — The  Constitution  national    .    .  171 

Fallacies  of  the  "  expounders  " 171 

The  new  system  "  done  "  only  by  states 172 

INTERPRETATION  No.  3.  — Story's  new  Article       ....  172 

Sheep  follow  bell-wethers 173 

The  blind  leading  the  blind 173 

INTERPRETATION  No.  4.  — "The  States  not  named"  .    .    .  174 

Each  state  put  her  name  in  the  compact 175 


CONTENTS.  XIX 

CHAPTER  IV.  —  SOME  SAMPLES  OF  "SOPHISMES." 

INTERPRETATION  No.  5.  — The  Supreme  Law  clause     .    .  176 

The  fathers'  idea  of  the  "  supreme  law  " 177 

Views  of  Hamilton,  Iredell,  Davie,  Parsons,  et  alii 177 

Views  of  Madison,  Hamilton,  Randolph,  Seward,  Greeley,  et  alii     .  178 

The  expounders  prove  too  much 178 

INTERPRETATION     No.     6.  — Partly     federal     and     partly 

national 178 

Testimony  of  the  Federalist 178 

The  states,  in  some  matters,  act  as  if  a  nation 179 

Madison's  views 179 

The  senate  federal  —  the  house  national •    .     .    .  179 

Exposure  of  the  gross  fallacy 180 

INTERPRETATION  No.  7.  — "Reserved  to" 181 

CHAPTER  V.  —  GARBLINGS. 

INTERPRETATION  No.  8.  —  Garbling  the  ratifications  .    .    .  182 

Deceptive  quotations 182 

The  true  versions 183 

What  was  the  motive  of  these  garblings  ? 184 

INTERPRETATION  No.  9.  — Garbling  the  Federalist     .     .    .  185 

Justice  Story's  effort 185 

An  effort  of  Mr.  Webster's  in  this  line 185 

Testimony  of  the  Federalist ;  sophistry  of  the  expounders      .    .    .  186 

CHAPTER  VI.  —  ADROIT  SUBSTITUTIONS. 

INTERPRETATION  No.  10.  —  Changing  terms  and  meanings  188 

Perversions  of  Everett  and  Curtis 188-9 

"  Irrevocable  conveyances  "  of  sovereignty 190 

"  Delegate,"  then,  is  the  only  correct  word     . 191 

Further  criticism  on  Mr.  Curtis's  views 192 

The  people  never  part  with  self-rule 194 

Apposite  quotation  from  Noah  Webster 195 

CHAPTER  VII.  —  MISSTATING  HISTORY  AND  RECORDS. 

INTERPRETATION    No.    11.  —  Misstating    the    Views    and 

Acts  of  the  Convention 196 

Reasons  for  making  a  new  federation 196 

The  "  mosaic  dispensation  "  of  centralism 197 

The  misstatement  to  be  refuted,  and  the  refutation 197 

How  the  states  instructed  their  deputies 198 

The  expounders'  style  of  quoting 199 

The  "  national  "  idea  repudiated 200 

More  anti-national  facts 200 

The  real  preamble 201 

The  real  "  government "  is  "  the  United  States  " 202 

Anti-national  contemporaneous  exposition 203 


XX  CONTENTS. 

CHAPTER  VIII.  — WEBSTER'S  MASTERPIECE  OF  CRITICISM. 

INTERPRETATION   No.   12 — "Constitutional  Compact."     .    .  204 

"  Compact "  and  "  accede  "  are  correct 204 

Webster  ignored  constitutional  history 205 

Neither  he  nor  Calhoun  stated  the  facts  of  the  case 207 

Both  must  have  assumed  their  premises 207 

Webster's  views  later  in  life 207 

Attempts  at  explanation 208 

Mr.  Webster's  real  views 209 

He  defines  compact,  confederation,  and  league 211 

Why  was  he  on  both  sides  ? 211 

CHAPTER  IX.— LINCOLN'S  PLAIN  ENGLISH. 

Consequences  of  the  "  expounders' "  interpretations 213 

Lincoln's  views  and  teachers 214 

Justice  to  Mr.  Lincoln 214 

States  and  counties  politically  equal 216 

Sovereignty,  if  not  asserted,  is  lost 216 

"  The  union  created  the  states  " 217 

The  states  became  subject  to  their  own  union 218 

Seeing  things  upside  down 219 

The  worship  of  the  idol  "  union  " 219 

The  reasons  for  the  perversions 220 

Eternal  vigilance  is  the  price  of  liberty 220 

CHAPTER  X.  —  WASHINGTON'S  POLITICAL  FAITH. 

Political  views  of  Washington  —  extracts 222-230 

CHAPTER  XI.  —  WASHINGTON'S  POLITICAL  FAITH.     (Continued.) 

Further  extracts  from  his  writings 231  et  seg. 

Extracts  from  his  farewell  address 234  et  sfq. 

Washington's  adoption  of  Wilson's  views .     .     .  237 

His  adoption  of  the  views  of  "Fabius  "  (John  Dickinson)    ....  238 

His  adoption  of  those  of  the  Federalist,  Hamilton,  and  others      .     .  239 

Comments  on  his  political  opinions 241 

His  statement  of  the  objects  of  government 241 

CHAPTER  XII.  — VERBAL  JUGGLERY. 

Perversion  of  Noah  Webster's  definitions 242 

Strategic  exposition 242 

The  American  "  Old  Man  of  the  Mountain  " 243 

Noah  Webster's  real  doctrines 243  et  seg. 

The  states  above  constitutions  of  government 244 

The  aim  is  to  preserve  the  states  complete 244 

Electees  and  agents 245 

A  compact  and  a  constitution 245 

Noah  Webster  never  changed 246 

The  "  adroit  substitutions  "  in  Webster's  dictionary 246 

1.  Sovereignty 247 

2.  "State,"  "  commonwealth,"  and"  republic" 247 

3.  "  Compact  "  and  "  constitution  " 248 

4.  "  Delegation  "  and  "  delegate  " 249 

6.  "  Union  "  and  "  e  pluribus  unum  " 250 

6.  "Federal,"  " f ederalise,"  " confederation" 251 


CONTENTS.  XXI 

7.  "  Congress "..... 251 

The  sum  of  Noah  Webster's  views 252 

The  untruths  ascribed  to  him 252 

Pro  tanto  the  book  is  not  Noah  Webster's 253 

Contemporanea  expositio 253 

Treason  to  the  people  and  to  freedom 254 

CHAPTER  XIII.  —  CONSERVATIVE  ERRORS. 

1.  As  to  "  a  republican  form  of  government  " 255 

The  sovereign  wills  survived  federation 256 

"  Form  "  and  soul  are  both  meant 256 

Self-preservation  the  duty  of  a  state 257 

Voting  in  some  states  is  a  mere  simulacrum  of  liberty 258 

The  guaranty  is  really  one  of  sovereignty 258 

2.  As  to  the  fourteenth  party  to  the  compact 259 

The  real  fourteenth  party,  if  any 260 

3.  As  to  nullification 260 

South  Carolina  and  the  proclamation  of  force 260 

A  cardinal  error  and  a  plain  distinction 261 

The  "  plain  distinction  " 262 

4.  As  to  "  The  Lost  Principle  " 263 

"  Barbarossa's  theory  " 263 

Webster  and  Curtis  have  the  same  idea 263 

5.  As  to  "  the  consent  of  the  governed  " 264 

6.  As  to  "  the  will  of  the  majority  rules  " 264 

7.  As  to  "  the  charter  of  our  liberties  " 265 

8.  As  to  social  compact,  constitution,  bill  of  rights 266 

9.  As  to  the  growth  and  development  theory 266 

10.  As  to  secession 267 

Why  ignore  nature  and  righteousness  ?      .     . 268 

The  late  secessions  unjustifiable 268 

Some  of  the  lessons  this  "  Part "  conveys 269 


PART    IV. 
SOVEREIGNTY  IN  THE   UNITED   STATES. 

CHAPTER  I.  — THE  GENESIS  OF  A  STATE. 

The  whole  subject  is  one  of  facts 274 

The  states  themselves  are  the  government 274 

The  states  are  so  many  republics 275 

The  case  exemplified  by  Pennsylvania 275 

The  origin  of  Pennsj'lvania 276 

William  Penn's  political  views  —  note 276 

The  first  step  of  making  the  province  a  state 276 

The  state  or  nation  completed 278 

Her  absoluteness  of  existence  and  sovereignty 279 

CHAPTER  II.— THE  REPUBLICAN  SOCIAL  COMPACT. 

Object  of  society 281 

The  social  compact  of  Pennsylvania 281 

Contemporaneous  expositions 282 


xxii  CONTENTS. 

Decisive  testimony  of  Massachusetts 282 

Sovereignty  vs.  government 283 

The  rationale  of  our  social  compact 283 

Authorities 284 

Government  is  mental  and  functional 285 

Constituting  the  general  government  was  functional 285 

A  clear  conception  of  the  states 286 

Divine  right 286 

CHAPTER  III.  — SOCIAL  COMPACT  FALLACIES. 

The  expounders  on  the  social  compact       288 

Story,  Webster,  and  Curtis — society  vs.  government 288 

A  misstatement  exposed ;  the  real  government 289 

Vagaries  of  the  political  pulpit  as  to  secession 290 

Specimens  of  expounding  on  this  subject 290 

Declaration  of  John  Quincy  Adams 290 

Professor  Jameson's  hotchpotch 291 

Hume  and  expounders  on  the  social  compact 291 

The  state  rules  in  all  things 292 

The  germ  of  the  republic 292 

The  society  called  Pennsylvania 292 

The  polity  is  self-government  of  societies 292 

Did  the  American  provinces  revolutionize  in  vain  ? 293 

CHAPTER  IV.  —  SOCIETIES  ARE  SOVEREIGN. 

What  our  political  history  and  philosophy  teach  —  five  propositions  294 

Grades  of  authority  —  illustrated 294 

An  amusing  mistake 295 

The  people  govern  the  people 296 

The  people  as  sovereign  states  and  as  subjects  —  demonstration      .  297 

A  further  illustration,  showing  perversion 297 

Views  of  publicists  idem  sonans  with  this  work 298 

The  states  subjugated,  if  this  theory  do  not  prevail 298 

"  National  sovereignty  "  no  better 299 

"  The  government  "  claims  to  be  paramount  . 300 

The  substance  of  the  preamble  and  article  VII 300 

Societies  of  people  unquestionably  ratified 300 

Experimentum  crucis  —  illustration 300 

Complete  corroborations 302 

A  complete  summing  up  by  James  Wilson 303 

CHAPTER  V.  —  SOVEREIGNTY  ONE  AND  INDIVISIBLE. 

Sovereignty  vs.  powers 305 

Imagine  Kaiser  William's  authority  divided 305 

What  say  the  publicists  ? 306 

Rights  and  powers  are  not  sovereignty 306 

Sovereignty  is  not  qualifiable  or  limitable 307 

Only  one  sovereignty  over  persons  and  things  —  two  illustrations  308,  309 

Sovereignty's  delegations  —  illustration,  facing  p 310 

Corollaries 310 

References  to  conclusive  authorities 811,  312 

CHAPTER  VI. —ERRONEOUS  VIEWS  OF  SOVEREIGNTY. 

How  the  masses  are  misled 313 

The  teaching  that  the  states  are  mere  counties 313 

Defences  changed  to  means  of  attack 314 

"  The  states  are  sovereign,  except,"  &c. ;  exposure  of  the  error    .    .  314 


CONTENTS.  xxiii 

Stephens,  Webster,  Pendleton,  Greeley,  Draper,  and  others    .      314,  315 

Delegating  is  irrevocably  granting  —  exposure  of  the  sophism     .     .  316 

Arguing  from  false  words 317 

The  fathers  never  held  such  dogmas 317 

Politicians,  like  sheep,  follow  a  bell 318 

Hon.  A.  H.  Stephens  and  others  on  sovereignty 319 

Extended  quotation  of  Mr.  Stephens'  views 320 

Remarks  on  the  same 321 

Sovereign  American  citizens 322 

Squatter  sovereignty 322 

Only  in  organisation  have  the  people  sovereignty 322 

The  fallacy  of  a  distinguished  professor 323 

Some  decisive  definitions 323,  324 

CHAPTER  VII.  — THE  UNITED  STATES  ARE  SOVEREIGNS  YET. 

States  are  the  sovereign  parties  to  the  compact 325 

The  people,  as  states,  have  always  amended 325 

The  first  twelve  amendments 326 

Adoption  by  separate  states 326 

The  later  amendments 327 

When  and  how  did  a  state  lose  sovereignty  ? 328  et  seq. 

Admissions  of  Everett,  J.  Q.  Adams  and  Webster,  and  others      .     .  330 

Sophists  always  stultify  themselves 331 

The  political  philosophers  —  their  views 332 

Issues  of  fact  tendered 332 

"  Free,  sovereign,  and  independent "  —  what  the  phrase  means    .    .  I 

The  states  not  under  the  control  of  the  government 333 

But  "  change  "  by  usurpation  threatens  us 334 

CHAPTER  VIII.  —  THE  STATES  ACT  AS  SOVEREIGNS  IN  THE  UNION. 

New  York's  record  on  the  subject 335 

New  York  now  sovereign 337 

What  say  Jay,  Hamilton,  and  Livingston  ? 337 

She  now  claims  sovereignty  over  people  and  soil 338 

Uncle  Sam  stands  in  New  York  only  on  her  grant I 

New  York  on  the  lordship  of  the  soil 339 

Chancellor  Kent  states  the  American  doctrine 340 

The  conditions  federal  foothold  is  granted  on 340 

New  York  then  is  absolute  on  her  soil 341 

| 

CHAPTER  IX.  —  OTHER  SOVEREIGNS  LIKE  NEW  YORK. 

Queen  Massachusetts  speaks  idem  sonans 342 

The  voice  of  Pennsylvania  on  the  subject 343 

Old  Virginia  acted  in  the  same  way 344 

The  understanding  of  South  Carolina 344 

So  say  the  new  states 346 

CHAPTER  X.  —  SOVEREIGNTY  IN  THE  NEW  STATES. 

.    The  origin  of  new  states 348 

Men  constitute  a  state 348 

Man's  right  of  self-rule  is  the  basis 348 

The  rationale  of  our  S3rstem 349 

Remarks  of  Montesquieu  —  note 349 

Distinctness  of  the  first  new  states 349 

Their  different  forms  of  polity 350 

Separateness  in  religious  faith 350 

The  myth  of  nationality 351 

The  new  states  of  latter  days 352 


xxiv  CONTENTS. 

States  are  societies  based  on  the  heart 352 

How  men  become  new  states,  and  these  sovereign 353 

The  status  and  rights  of  a  settler 353 

Whence  comes  the  new  state's  sovereignty  ? 353 

Reasons  for  the  view  expressed 354 

CHAPTER  XL  — THE  ULTIMATE  ARBITER. 

The  natural  and  inherent  right  of  defence  is  in  society 355 

No  federal  capacity,  or  duty,  for  direct  local  defence 355 

Who  is  to  judge  of  broken  conditions  and  forfeitures  ? 356 

The  pact  itself  agrees  with  the  philosophy  here  set  forth    ....  357 

The  expounders  virtually  admit  the  theory  hereof 358 

The  guaranty  of  all  the  states  is  to  preserve  each 359 

Expressio  unius  est  exclusio  alterius 360 

"  The  government "  can  enter  states  only  by  express  law    ....  360 

"  The  government "  has  no  right  to  hold  the  states 360 

Its  doing  so  reduces  the  states  to  counties 361 

CHAPTER  XII.  —  THE  TRUE  CHARACTER  OF  THE  GOVERNMENT. 

It  is  tripartite,  or  three  institutions  —  illustrative  diagram  ....  362 

Unheeded  form  of  consolidation  the  worst 363  et  seq. 

The  government  cannot  be  a  grantee  —  the  reasons  why    ....  363 

A  misleading  misnomer 365 

Let  us  symbolise  the  polity 365 

CHAPTER  XIII.  — FACTS  MUST  PREVAIL. 

Let  those  who  devised,  describe  the  polity 367 

Statements  of  Hamilton,  Madison,  Washington,  and  others     .     .     .  367 

The  sons  contradict  the  above  statements 368 

The  subject  is  exclusively  one  of  fact 368 

Construction  or  interpretation  has  here  no  place 369 

The  question  Americans  cannot  evade 369 

A  hint  to  England  and  the  American  provinces 369 


PAET  Y. 

CITIZENSHIP,  ALLEGIANCE,  AND  TREASON  IN  THE 
UNITED   STATES. 

CHAPTER  I.  —  THE  PEOPLE  ARE  SOVEREIGN  STATES. 

Statement  of  fundamental  principles 373 

1.  The  people  are  the  states j 

2.  Loss  of  statehood  feared  and  forefended 373 

3.  Federal  usurpations  to  be  treated  as  nullities 373 

4.  The  federal  agency  not  to  coerce  states 373 

5.  Self-defence  of  states  against  said  agency  unlimited    ....  373 

6.  The  citizen's  defence  of  his  state  cannot  be  treason     ....  373 

The  states  are  the  people  and  polity 374 

Corroborative  views  of  Webster,  Curtis,  and  James  Wilson    .    .    .  374 


CONTENTS.  XXV 

CHAPTER  II.  —  FEDERAL  USURPATION  TO  BE  FEARED  AND  OPPOSED. 

Views  of  Ames,  Pendleton,  and  others  against  consolidation  .    .    .  376 

Carefully  guarding  against  consolidation 377 

Massachusetts  originated  the  tenth  amendment 377 

This  amendment  a  mere  truism 377 

The  grand  result  of  the  movement 378 

Amendment  X.  alone  shows  the  states  to  be  fully  sovereign    .    .    .  379 

The  real  meaning  of  Amendment  X.  —  note 379 

CHAPTER  III.  —  USURPATIONS  TO  BE  TREATED  AS  NULLITIES. 

Views  of  Hamilton,  Parsons,  and  Iredell 380 

Views  of  Massachusetts  and  Connecticut 380 

Views  of  Presidents  Jefferson,  Jackson,  and  Johnson 381 


CHAPTER  IV.  — No  FEDERAL  COERCION  OF  STATES. 

The  states  in  no  wise  subject  to  the  constitution 382 

What  say  the  fathers  on  federal  coercion  ? 383 

The  fathers  aimed  to  avoid  coercing  states 385 

Even  judicial  coercion  of  states  not  intended 385 

Massachusetts  again  in  the  lead 38(5 

The  grand  result  she  led  to 387 

Perjured  usurpation  and  treason   .    ; 387 

CHAPTER  V.— SELF-DEFENCE  OF  STATES. 

The  testimony  of  the  states  themselves 388 

What  the  fathers  say  on  self-defence  of  states 388 

The  ancient  faith  of  Massachusetts 391 

Similar  treason  from  Virginia 392 

Hamilton's  testimony 392 

The  last  reasoning  of  the  states  on  the  subject 393 


CHAPTER  VI.  —  TRUE  LOYALTY  is  FIDELITY  TO  THE  STATE. 

To  defend  the  state  is  duty  and  not  treason 394 

Corollaries 394 

1.  The  primary  objects  of  a  citizen's  devotion  are  in  his  state      .  394 

2.  Citizens  are  the  integers  of  a  state,  and  owe  it  allegiance     .     .  394 

3.  The  citizens  are  the  soldiery,  and  the  state  is  to  control  it       .  394 

4.  Defending  the  state  with  arms  is  collective  self-defence       .     .  394 

5.  Citizens  cannot  commit  treason  by  defending  the  state  .     .     .  394 

6.  The  compact  regards  the  state  as  the  object  of  treason  .     .     .  394 

A  few  explanatory  remarks 394 

The  state  is  the  sole  object  of  patriotism 395 

Expression  of  the  sentiment  by  the  fathers 395 


CHAPTER  VII.  —  AMERICAN  CITIZENSHIP  AND  ALLEGIANCE. 

The  federal  constitution  on  citizenship 397 

False  naturalization 398 

Let  the  states  testify  on  citizenship 399 

Effect  of  amendment  XIV.  on  citizenship — note 400 

Testimony  of  the  states  on  allegiance 400 

Allegiance  as  to  Davis  and  Lee 402 


XXvi  CONTENTS. 

CHAPTER  VIII.  —  THE  STATE  is  ABSOLUTE  OVER  THE  SOLDIERY. 

What  does  Massachusetts  say  ? 403 

What  her  fundamental  law  declares 404 

Her  political  action  in  the  union 405 

Her  Hartford-conventionism 406 

CHAPTER  IX. — DEFENDING  ONE'S  STATE  is  SELF-DEFENCE. 

The  state  is  the  citizens  thereof 408 

It  contains  all  powers  of  government 408 

Defending  one's  state  is  not  treason 409 

The  federal  compact  changed  neither  states  nor  citizens      ....  410 

No  change  made  by  the  late  amendments 411 

The  error  of  the  expounders  on  this  subject 411 

CHAPTER  X.  —  ALL  TREASON  is  AGAINST  THE  STATE. 

The  treason  clause  is  the  law  of  the  states 413 

The  federal  instrument  itself  proves  this  view 414 

Inter-state  faith  is  the  sole  basis 415 

Illustration  by  the  case  of  Virginia   .     .     .    • 415 

The  transfer  of  allegiance  an  absurdity 416 

Let  Massachusetts  testify 417 

Vermont  and  Kentucky  add  decisive  proof 418 

Let  us  first  take  the  case  of  Vermont 419 

Kentucky's  view  on  the  subject 419 

The  early  faith  on  this  vital  subject 419 

CHAPTER  XI.— ALL  TREASON  is  AGAINST  THE  STATE.    (Continued.) 

The  crime  is  against  society 421 

It  is  necessarily  against  the  state 422 

Naturally  disunion  ends  federal  treason 422 

Naturally  states  can  undo  what  they  do 423 

But  the  matter  is  on  a  higher  plane 423 

The  real  tie  binding  the  citizen  to  obey 424 

CHAPTER  XII.  —  CONCLUSION. 

Our  whole  system  is  states 425 

Why  fight  facts  ? 425 

Men  naturally  associate 425 

Free  states  gravitate  like  free  men 426 

Who  saved  the  states  ? • 426 

Civil  rule  and  legal  coercion  still  stand       426 

Evasion  of  Jefferson  Davis's  trial 427 

The  true  sanction  of  the  union 427 

Inter-state  faith  the  only  basis 427 

Hold  sacred  the  muniments  of  liberty 427 

Constitutions  harness  power 427, 428 

Our  most  dangerous  perverters 428 

Title  by  assertion ' 428 

Anathema 428 

Let  us  acknowledge  our  sovereigns 429 

The  palladium  of  all  our  blessings 429 

The  people  choose  to  be  states 429 

The  rightful  central  power 429 

Plain  common  sense  as  to  union 430 

Man  —  the  sole  object  of  institutions 430 

The  Alpha  and  Omega  of  the  book   . 431 


CONTENTS. 


APPENDIX. 


A.     THE  UNION  OF  STATES. 


No.  1.  —  Extracts  from  the  Massachusetts  Centinel    .     .    .  433 

No.  2.  —  Extracts  from  the  Virginia  Gazette 457 

No.  3.  —  Extracts  from  the  American  Museum 407 

No.  4.  —  Extracts  from  the  American  Magazine      ....  491 

Extracts  from  the  Columbian  Magazine    ....  494 

Extracts  from  the  Massachusetts  Magazine  .    .    .  495 

B.  THE  FEDERAL  CONSTITUTION. 

The  instrument  with  the  confederate  changes      .     .     .   497  et  seq. 

The  parties  and  the  ordaining  words 608 

The  amendments  . 509  et  seq. 

The  names  of  the  attesting  planners 512 

Documents  referring  to  establishment 513  et  seq. 

C.  FEDERATION  ALWAYS  INTENDED. 

No.  1.  —  Instructions  to  the  delegates  of  1787     .     .     .   516  et  seq. 

No.  2.  —  The  acts  of  ratification 623  et  seq. 

No.  3.  — The  intent  of  the  convention  of  1787    .     .     .    528  et  seq. 

D.  THE  HIGHEST  CONTEMPORANEOUS  EXPOSITION. 

Extracts  from  the  Federalist 537  et  seq. 

E.  INSTITUTES  or  FREEDOM. 

Proclamation  of  Massachusetts,  January  22,  1776   .    .  546  et  seq. 

Resolutions  of  Virginia,  May  15,  1776 548  et  seq. 

Declaration  of  Independence 550  et  seq. 

Virginia  Bill  of  Rights 553  et  seq. 

Massachusetts  Bill  of  Rights 555  et  seq. 

The  Tenth  Amendment 559  et  seq. 

F.  WEBSTER'S  REAL  CONSTITUTIONAL  VIEWS. 

Report  of  1819  op  the  Missouri  question 561  et  seq. 

G.  EXTRACTS  FROM  "THE  LOST  PRINCIPLE"  BY  "  BARBAROSSA." 

572  et  seq. 

H.    REVIEW  OF  STEPHENS  AND  JAMESON 577  et  seq. 


PART    I. 
A   GENERAL    VIEW. 


THE   REPUBLIC   OF   REPUBLICS. 


PART  I. 
A    GENERAL    VIEW 


UNIVERSITY 


CHAPTEE  I. 
INTRODUCTORY. 

THE  American  colonies  of  England  were,  at  first,  so  many  little 
flecks  of  civilization  shining  on  a  pagan  shore,  like  glow-worms 
in  the  dark.  These  little  societies  were  then  separated,  each  from  the 
others,  by  hundreds  of  miles  of  unbroken  forest.  All  grew  rapidly, 
spreading  from  their  respective  centres;  but  there  was  no  political 
coalescence.  The  mental  eye  follows  them  'in  all  their  separate  histo- 
ries, until  they  finally  appear  as  stars  grouped  in  a  glorious  constella- 
tion, each  shining  with  unborrowed  light. 

Each  from  the  first  was  organized  and  governed  by  the  sovereign 
power  of  England,  separately  from  the  rest.  Such  organized  colony 
or  province  was  a  body,  fit  for  the  indwelling  of  a  soul.  To  make  a 
state,  the  peculiar  and  essential  characteristic  was  required,  which  in 
political  philosophy  is  recognized  as  distinguishing  a  state  from  a 
colony,  province,  county,  or  other  subdivision  of  a  state  —  the  absolute 
right  of  self-command  or  self-government  in  all  things ;  so  that  when 
independence  was  consummated,  the  aforesaid  body  became  instinct 
with  its  own  soul.  In  other  words,  it  became  a  sovereign  state. 

We  may  compare  these  colonies  to  so  many  branches  of  a  great  and 
vigorous  tree,  each  with  the  vital  energy  to  live  and  thrive  independ- 
ently, if  lopped  off  and  planted  in  its  own  free  soil.  When  severed  by 
rebellious  swords,  each  "  became  a  living  soul,"  and  each  necessarily 
possessed  sovereign  political  will  over  its  own  territory  and  people. 
Sovereignty  could  not  be  out  of  it,  for  there  was  no  political  organism 
and  no  people,  other  than  these  thirteen  commonwealths.  Each  was 
untrammelled  and  free,  like  an  eagle  that  soars  away  from  his  broken 
bonds,  and  sees  no  shadow  of  power  between  him  and  the  sun  ! 


4  A  GENERAL  VIEW. 

The  colonies  associated  themselves  to  effect  their  independence, 
and  made  the  celebrated  declaration  of  July  4,  1776,  as  the  thirteen 
united  states  of  America ;  but,  like  thirteen  persons  united  to  effect 
some  object,  they  retained  their  respective  individualities ;  and 
George  III.  could  but  have  acknowledged,  as  he  did  in  1783,  at 
the  instance  of  the  American  Commissioners,  that  each  state  was 
"  free,  sovereign,  and  independent."  And  it  was  quite  natural,  nay, 
unavoidable,  that  these  states  should  all  mutually  declare,  covenant, 
pledge,  and  guaranty,  as  they  did  do,  by  their  federation  or  solemn 
league,  subsisting  at  the  moment  each  entered  the  present  union, 
that  "each  state  retains  its  sovereignty  and  independence."  But  it 
must  be  noted,  that  sovereignty  was  not  caused  by  the  declaration, 
the  acknowledgment,  or  the  compact,  or  all  of  them  together,  for 
these  instruments  merely  declared  —  and  bound  the  declarants  to 
respect  —  such  entity  or  fact.  In  truth,  sovereignty  only  began  to 
exist  at  the  moment  the  power  of  the  state  predominated  over  all 
opposing  forces,  and  became  supreme  power ;  and  the  precise  time 
of  its  origin  may  be  as  difficult  to  determine,  as  is  that  of  the  soul's 
existence  in  the  human  child.  Suffice  it  to  say,  it  existed  in  the 
state,  or  not  at  all ;  for  there  was  no  other  possible  body  for  it  to 
dwell  in  than  the  organized  body  of  people  called  the  state. 

Each  one  of  these  states,  thus  originating  and  thus  characterized, 
was  a  republic,  that  is,  a  community  of  people,  with  the  absolute  right 
of  self-government  in  all  things.  This  sovereignty  of  the  state  is 
indivisible,  and  remains  integral,  even  though  all  the  powers  of  gov- 
ernment be  delegated.  A  person  may  give  a  thousand  commands,  or 
delegate  a  thousand  powers,  concerning  what  he  owns,  or  of  right 
governs,  without  diminishing  his  ownership  or  right  of  control.  So 
with  a  state.  For  instance,  the  agents  of  the  sovereignty  of  England 
exercise  the  powers  of  government  throughout  her  world-wide  domin- 
ions, while  the  sovereignty  remains  enthroned  at  home,  —  the  absolute 
will  of  the  state. 

"  The  Constitution  of  the  United  States  of  America  "  was  made  or 
constituted  by  the  concurrent  action  of  the  thirteen  pre-existent 
states  referred  to,  each  of  which,  during  all  the  time  of  that  action, 
"  retained  its  sovereignty,  freedom,  and  independence,"  as  was  de- 
clared by  all  of  them  in  their  solemn  league  and  covenant,  —  the 
Articles  of  Confederation.  The  instrument  calls  itself  a  "  constitution 
for"  "united  states,"  and  characterizes  the  arrangement  made  therein 
as  a  "  union  of  states."  For  instance,  Article  I.,  section  2,  speaks  of 
"  the  several  states  which  may  be  included  within  this  union ; "  Ar- 
ticle IV.,  section  3,  declares  that  "new  states  may  be  admitted  into 
this  union  ; "  and  Article  IV.,  section  4,  includes  the  phrase,  "  every 


INTRODUCTORY.  5 

state  in  this  union."  Moreover,  the  said  constitution  declares  that  it 
was  to  be  "  established,"  and  take  effect,  "  between  the  states  so  rati- 
fying the  same."  Nay,  more ;  its  powers  were  only  delegated,  and 
hence  must  be  wielded  by  trustees  and  agents,  chosen  by,  and  subor- 
dinate to,  the  delegating  states,  while  the  "  powers  not  delegated  are 
reserved  to  the  states  respectively,  or  to  the  people"  of  the  same. 
There  is  no  evidence,  or  even  hint,  of  any  change  of  character  of  the 
states ;  but,  on  the  contrary,  they  are  named  in  the  constitution  as 
absolute  and  complete  political  bodies,  which  are  necessarily  the 
parties  to,  and  the  actors  under,  the  federal  system.  And,  finally,  all 
elective  power  and  right  was  inherent  and  absolute  in  the  people  com- 
posing these  states,  as  their  constitutions  show ;  and  moreover,  they 
declared  in  their  federal  constitution  that  they  were,  as  states,  to  keep 
and  exercise  the  said  elective  power.  It  is  provided  in  Article  I.  that 
"the  people  of  the  several  states"  are  to  choose  the  "representa- 
tives ; "  and  that  " each  state"  " by  the  legislature  thereof,"  is  to  elect 
senators.  Article  II.  provides  that  "  each  state  shall  appoint "  presi- 
dential electors.  These  congressmen  and  presidential  electors  are 
citizens  and  subjects  of  their  respective  states,  and  in  their  vicarious 
and  representative  character,  they  appoint  all  other  federal  officers. 
So  that  here,  in  the  constitution  itself,  we  have  the  most  positive  and 
absolute  proofs  that  the  states  are  sovereign  over  the  federal  govern- 
ment, this  being  their  mere  agency,  or,  in  other  words,  a  part  of  their 
machinery  of  self-government. 

If  the  states  are  equal,  if  the  constitution  and  the  resultant  gov- 
ernment are  made  by  their  will,  and  if  they  elect  their  own  subjects 
or  citizens  as  functionaries,  there  can  be  as  little  doubt  of  their  sove- 
reignty as  there  is  that  GOD  reigns  supreme  over  His  creations.  And 
not  a  word  of  American  history,  or  a  principle  of  governmental  phi- 
losophy, is  inconsistent  with  this  view.  So  plain  are  these  facts  to 
thoughtful  and  conscientious  men,  that  the  government's  claim  of 
"  absolute  supremacy  "  over  allegiant  states,  voiced  in  the  thunders 
of  the  recent  war,  sounds  like  the  knell  of  that  constitutional  freedom 
of  which  the  states  were  the  very  citadels.  The  founders  of  American 
liberty  taught  the  capacity  of  our  people  for  self-government,  or,  in 
other  words,  that  all  questions  could  be  settled  as  they  arose,  by 
reason,  with  justice,  and  without  force.  They  said  the  system  they 
founded  was  fraught  with  the  blessings  of  peace;  but  while  their 
footsteps  are  yet  echoing  in  "  the  corridors  of  Time,"  and  while  we  are 
extolling  their  patriotic  wisdom,  boasting  of  the  precious  inheritance 
they  have  left  us,  and  singing  pseans  to  Freedom,  the  very  constitu- 
tion they  founded  on  these  principles,  is  perverted  from  its  purpose, 
and  employed  as  the  means  of  destroying  a  million  of  our  brethren, 


6  A  GENERAL  VIEW. 

filling  the  land  with  mourning,  annihilating  at  least  one-half  of  the 
property  of  the  country,  creating  an  inextinguishable  and  crushing 
debt,  depriving  one-third  of  our  free  and  equal  states  of  the  last  ves- 
tige of  their  equality  and  freedom,  and  establishing  a  precedent  which, 
if  placed  upon  the  generally  assumed  basis  and  followed,  subjugates 
all  the  states  to  the  "  absolute  supremacy  "  of  a  central  and  irrespon- 
sible power,  and  destroys  constitutional  liberty.  For  if  "  the  gov- 
ernment "  has  "  absolute  supremacy  "  over  the  states  that  made  it,  as 
the  Philadelphia  Convention  of  1866  declared,  its  unlimited  right  of 
taxation,  and  of  raising  armaments,  enable  it  to  control  all  states  and 
sections  of  states  at  will,  and,  finally,  to  establish  an  empire.  In 
truth,  this  has  already  been  done.  Whenever  there  is  "absolute 
supremacy  "  in  "  the  government,"  there  is  no  limit  to  its  will  or  dis- 
cretion. Unlimited  power  in  human  hands  may  become  as  gross  a 
tyranny  as  could  be  exercised  by  a  monster,  with  the  soul  of  Mephis- 
topheles  in  the  body  of  a  tiger ;  for  man  has  the  capacity,  and  only 
requires  the  downward  training,  practices,  and  incentives,  to  become  a 
devil.  Satan  was  once  an  angel  of  light.  Nero,  and  other  tyrants, 
and  associations  of  tyrants,  possessing  absolute  supremacy,  rivalled 
him  as  nearly  as  human  infirmities  and  trammels  would  permit.  It 
is  vain  to  talk  of  civilization  and  Christianity  as  restraints.  Bad  men 
use  these  as  the  most  potent  means  to  their  ends.  It  is  vainer  to 
talk  of  constitutional  restrictions,  when  rulers  by  perjured  usurpation 
act  —  and  glory  in  acting  —  in  the  infinite  field  of  discretion  "outside 
of  the  constitution."  And  it  is  vainest  to  suppose  that  the  phrase 
"  according  to  the  constitution  "  is  other  than  a  meaningless  one,  as 
long  as  the  phrases,  "  absolute  supremacy  in  the  government,"  and 
"  state  sovereignty  is  effectually  controlled,"  are  recognized  as  consti- 
tutional ones ;  for  "  state  sovereignty  "  is  precisely  "  the  sovereignty 
of  the  people,"  the  said  people  having  never  been  organized  for  gov- 
ernment, and  having  never  exercised  political  authority  except  as 
states ;  so  that  if  "  state  sovereignty  is  effectually  controlled,"  the 
sovereignty  of  the  people  is  effectually  controlled,  and  republican 
government  is  at  an  end !  It  is  simple  mockery  to  reply  that  the 
"  absolute  supremacy  "  is,  by  the  nation,  limited  to  the  grants  of  the 
constitution,  or,  in  other  words,  that  the  states  are  sovereign,  except 
as  to  the  powers  surrendered,  when  the  twin  dogma  is,  that  the  federal 
government  is  the  final  judge  of  the  extent  of  its  powers.  Our  worst 
men  often  get  the  highest  places,  and  exercise  this  final  judgment; 
their  consciences  are  equal  to  any  occasion ;  and  they  gain  what  they 
wish,  by  ignoring,  or  rather  violating,  their  oaths,  and  justifying  them- 
selves by  the  tyrant's  plea  —  necessity.  Indeed,  we  have  recently 
seen  that  the  people's  "  trustees  and  agents  "  called  themselves  "  the 


INTRODUCTORY.  7 

Government;"  claimed  absolute  supremacy  and  regal  prerogatives; 
dissolved  states  and  made  new  ones  ;  changed  the  state  governments ; 
removed  the  highest  officers  thereof;  gave,  and  took  away,  voting 
power ;  and,  in  short.,  did  many  revolutionary  enormities  "  outside  of 
the  constitution."  These  things,  which  every  officer  of  the  govern- 
ment was  sworn  not  to  do,  were  really  treasonable  to  the  last  degree,  for 
they  destroyed  the  existence  of  the  states,  and  dethroned  the  sove- 
reignty of  the  people  who  were  the  states,  and  who  politically  existed, 
and  politically  acted,  only  as  states.  Suffrage  is  —  humanly  speaking 
—  "  the  pearl  of  great  price  "  in  republican  freedom.  It  is  vital  to  lib- 
erty, and  must  be  absolutely  controlled  by  the  people  who  own  it,  and 
not  by  any  government.  The  voting  power  belongs,  of  original  and 
absolute  right,  to  the  community  called  the  state,  who  are  the  real  gov- 
ernment —  what  we  call  "  government "  being  the  agency  thereof;  and 
a  republic  being  a  government  of  the  people  by  the  people.  Says 
MONTESQUIEU  (I.  Esprit  des  Lois.  p.  12) :  "In  a  democracy,  there  can 
be  no  exercise  of  sovereignty  but  by  the  suffrages  of  the  people,  which 
are  their  will.  Now,  the  sovereign's  will  is  the  sovereign  himself; 
the  laws,  therefore,  which  establish  the  right  of  suffrage,  are  funda- 
mental to  this  government.  In  fact,  it  is  as  important  to  regulate, 
in  a  republic,  in  what  manner,  by  whom,  and  concerning  what,  suf- 
frages are  to  be  given,  as  it  is  in  a  monarchy  to  know  who  is  the 
prince,  and  after  what  manner  he  is  to  govern." 

The  original  voting  power  is  the  people  composing  the  society  or 
state,  in  whom,  as  every  state  constitution  declares  or  implies,  "  all 
political  power  is  inherent."  The  derivative  or  delegative  voting 
power  is  an  endowment,  by  society  or  the  state,  of  individual  mem- 
bers designated  and  described  as  voters,  in  the  constitution  of  the 
state.  As  Montesquieu  says,  "  the  laws  which  establish  the  right  of 
suffrage  are  fundamental  to  the  government,"  and  hence  they  are 
found  only  in  the  fundamental  laws  of  the  states,  established,  of 
original  right,  by  sovereign  power.  It  is  plain,  then,  that  if  the  gov- 
ernment (whether  state  or  federal)  controls  or  disposes  of  suffrage, 
without  warrant  in  the  constitution,  it  strikes  at  the  very  vitals  of 
the  republic,  from  which  it  derives  its  entire  existence  and  power, 
and  commits  perjured  usurpation,  as  well  as  flagrant  treason.  It  is 
equally  plain  that  an  insidious  and  fraudulent  revolution  is  now 
going  on,  tending  to  subjugate  the  people  of  this  country — just  as 
all  other  free  peoples  have  been  —  to  the  "  absolute  supremacy  of  the 
government !  " 

Would  to  GOD  that  I  could  sear  upon  the  brain  and  heart  of  each 
of  our  states  and  citizens,  the  words  of  that  immortal  statesman,  that 
best  English  friend  of  American  liberty,  EDMUND  BURKE  !  "  This 


8  A  GENERAL  VIEW. 

change,"  said  he,  "  from  an  immediate  state  of  procuration  and  dele- 
gation, to  a  course  of  acting  as  from  original  power,  is  the  way  in 
which  all  the  popular  magistracies  of  the  world  have  been  perverted 
from  their  purposes." 

Oh  that  our  people  may  heed  the  warning,  and  stay  the  hand  of 
Fate,  which  is  even  now  engraving  upon  the  walls  of  time,  that 

"Our  own, 

Like  free  states  foregone,  is  but  a  bright  leaf  torn 
From  Time's  dark  forest,  and  on  the  wild  gust  thrown, 
To  float  awhile,  by  varying  eddies  borne  ; 
And  sink  at  last  forever!  " 


CHAPTEE    II. 

PERVERSION. 

AS  "the  government"  now  claims  "absolute  supremacy,"  and 
'  exercises  and  enforces  the  same,  whenever  it  thinks  "  neces- 
sity," "  the  safety  of  the  republic,"  or  even  "  good  policy  "  requires 
it,  "  we,  the  people,"  have  obviously  lost  our  freedom.  And  we  can 
only  retake  and  enjoy  it,  in  its  active  sense  of  self-government,  by 
reasserting  and  re-establishing  the  original  federal  plan,  and  hence- 
forth keeping  our  general  government  within  our  "supreme  law" 
establishing  it,  and  compelling  the  said  government  to  work,  as  our 
agency,  under  our  sovereignty,  with  the  legal  force  originally  contem- 
plated —  the  same  that  the  state  governments  work  with  —  and  that 
needs  no  military  force,  except  to  aid  the  civil  authority,  and  put 
down  any  banded  criminal  opposition  thereto.  The  states  being  the 
sole  sources  of  all  power,  federal  military  force  against  any  of  the 
people,  without,  or  against,  state  authority,  is  treasonable. 

To  impress  upon  the  reader,  at  this  point,  the  absolute  sovereignty 
of  the  people,  and  the  subordination  of  their  governments,  as  well  as 
the  perfect  similarity,  in  created  existence,  character,  and  vicarious 
authority,  of  the  federal  and  state  governments ;  and,  moreover,  to 
get  an  absolute  and  unquestionable  basis  for  further  exposition,  let 
us  have  the  sacred  testimony  of  the  fathers,  as  to  the  seat  or  resi- 
dence of  original,  absolute,  and  uncontrollable  authority,  i.  e.  sove- 
reignty. It  is  well  to  observe  here,  that  every  state  constitution  or 
bill  of  rights  expressed  or  implied  that  "ALL  POLITICAL  POWER  is  IN- 
HERENT IN  THE  PEOPLE,"  so  that  the  fathers  did  not,  in  the  following 
extracts,  express  their  opinions  merely,  but  truths —  the  very  insti- 
tutes of  freedom. 

The  Doctrine  of  the  Fathers.  —  Said  HAMILTON  in  the  convention 
of  New  York,  in  1788,  speaking  of  the  proposed  system:  "What  is 
the  structure  of  this  government  1  .  .  .  The  people  govern.  They  act 
by  their  immediate  representatives."  He  evidently  knew  of  no  "  ab- 
solute supremacy  "  in  "  the  government."  JOHN  JAY,  of  New  York, 
the  first  Chief  Justice  of  the  United  States,  wrote  as  follows,  in  his 


10  A  GENERAL  VIEW. 

"  address  to  the  people  "  of  that  state,  in  favor  of  the  federal  constitu- 
tion :  "  The  proposed  government  is  to  be  the  government  of  the 
people.  All  its  officers  are  to  be  their  'officers,  and  to  exercise  no 
rights  but  such  as  the  people  commit  to  them.  The  constitution  only 
serves  to  point  out  that  part  of  the  people's  business,  which  they  think 
proper  by  it  to  refer  to  the  management  of  the  persons  therein  desig- 
nated." Does  not  that  mean  the  constitution  of  an  agency  1  JUDGE 
PARSONS,  one  of  the  greatest  statesmen  and  jurists  of  Massachusetts, 
in  the  ratifying  convention  of  that  state,  characterized  the  federal 
government  as  "a  government  to  be  administered  for  the  common 
good,  by  the  servants  of  the  people,  vested  with  delegated  powers,  by 
popular  election,  at  stated  periods."  "  The  federal  constitution,"  con- 
tinued he,  "  establishes  a  government  of  this  description,  and,  in  this 
case,  the  people  divest  themselves  of  nothing;  the  government  and 
powers  which  the  congress  can  administer,  are  the  mere  result  of  a 
compact  made  by  the  people."  "The  people  divest  themselves  of 
nothing,"  said  Judge  Parsons ;  that  is  to  say,  they  govern  themselves, 
using  an  agency  for  that  purpose  —  Qui  facit  per  alium,  facit  per  se. 
But  our  modern  interpreters  say  that  "  the  government "  has  "  abso- 
lute supremacy,"  and  can  enforce  "  the  allegiance  "  of  the  very  states 
that  gave  it  existence.  Said  Gen.  C.  C.  PINCKNEY,  of  South  Carolina, 
in  the  ratifying  convention  of  that  state  :  "  The  sovereign  or  supreme 
power  of  the  state,  with  us,  resides  in  the  people."  "The  general 
government  has  no  powers  but  what  are  expressly  granted  to  it." 
"  By  delegating  express  powers,  we  certainly  reserve  to  ourselves  every 
power  and  right  not  mentioned  in  the  constitution."  Said  CHANCEL- 
LOR PENDLETON,  the  president  of  the  ratifying  convention  of  Virginia : 
"The  people  are  the  fountain  of  all  power.  They  must,  however, 
delegate  it  to  agents,  because  from  their  number,  etc.,  .  .  .  they  can- 
not exercise  it  in  person.  .  .  .  When  we  were  forming  our  state 
constitution,  we  were  confined  to  local  circumstances.  In  forming 
a  government  for  the  union,  we  must  consider  our  situation  as  con- 
nected with  our  neighboring  states."  Said  JOHN  MARSHALL,  after- 
wards the  great  judge,  in  the  same  convention  :  "  Those  who  give, 
may  take  away.  It  is  the  people  that  give  power,  and  can  take  it 
back  j  what  shall  restrain  them  1  They  are  the  masters  who  gave 
it,  and  of  whom  the  servants  hold  it.  ...  Are  not  Congress  and 
the  state  legislatures  the  agents  of  the  people  1"  Said  CHANCELLOR 
LIVINGSTON,  in  the  ratifying  convention  of  New  York :  "  They,  the 
people,  acknowledge  the  same  great  principle  of  government,  .  .  . 
that  all  power  is  derived  from  the  people.  They  consider  the  state 
and  general  governments  as  different  deposits  of  that  power.  In  this 
view,  it  is  of  little  moment  to  them,  whether  that  portion  of  it  which 


PERVERSION.  11 

they  must,  for  their  own  happiness,  lodge  in  their  rulers,  be  invested 
in  the  state  governments  only,  or  shared  between  them  and  the  coun- 
cils of  the  union.  The  rights  they  reserve  are  not  diminished,  and 
probably  their  liberty  acquires  additional  security  from  the  division." 
Said  JAMES  WILSON,  who  was  the  leading  statesman  of  Pennsylvania 
in  both  the  federal  and  state  conventions :  ''  The  supreme,  absolute, 
and  uncontrollable  power  is  in  the  people  before  they  make  a  consti- 
tution, and  remains  in  them  after  it  is  made."  "  The  absolute  sove- 
reignty never  goes  from  the  people."  The  FATHER  OF  HIS  COUNTRY 
wrote  to  his  nephew,  Bushrod  Washington,  Nov.  10,  1787,  as  follows  : 
"The  power,  under  the  constitution,  will  always  be  in  the  people. 
It  is  entrusted  to  their  representatives,  .  .  .  their  servants.  .  .  . 
They  are  no  more  than  the  creatures  of  the  people."  Said  MADISON 
(who  is  often  called  the  "  Father  of  the  Constitution,"  and  who  cer- 
tainly was  "  its  ablest  expounder  "),  in  Article  46  of  the  Federalist : 
"  The  federal  and  state  governments  are,  in  fact,  but  different  AGENTS 
AND  TRUSTEES  of  the  people,  instituted  with  different  powers.  .  . '. 
The  ultimate  authority  [i.  e.  the  "  absolute  supremacy  "]  wherever  the 
derivative  may  be  found,  resides  in  the  people  alone."  And  he  said,  in 
the  convention  of  Virginia,  in  reference  to  the  parties  to  the  union, 
that  the  phrase  "  the  people  "  did  not  mean  "  the  people  as  compos- 
ing one  great  society,  but  the  people  as  composing  thirteen  sove- 
reignties." And  it  may  be  stated  here  that  generally,  when  the  fathers 
used  the  phrase  "  the  people,"  constitutionally,  they  meant  the  people 
of  the  sovereign  states,  that  were  the  actors  in  making  the  federative 
union.  They  could  not  have  meant  otherwise,  for  the  simple  reason 
that  the  people  were  the  states,  and  the  states  were  the  people.  In 
his  speech  of  1833,  DANIEL  WEBSTER,  the  head  of  the  Massachusetts 
school,  decisively  admits  the  above,  and  destroys  the  basis  of  himself 
and  school  as  follows  :  "  The  sovereignty  of  government  is  an  idea 
belonging  to  the  other  side  of  the  Atlantic.  No  such  thing  is  known 
in  North  America  :  .  .  .  with  us  all  power  is  with  the  people.  They 
alone  are  sovereign ;  and  they  erect  what  governments  they  please, 
and  confer  on  them  such  power  as  they  please.  None  of  these  gov- 
ernments is  sovereign."  No  framer  of  the  constitution  ever  did,  or 
could,  characterize  the  federal  functionaries  they  were  providing  for, 
otherwise  than  as  the  states  themselves  did,  as  "  substitutes  and 
agents,"  who  were  to  be  and  remain  as  "  citizens  "  and  "  subjects  "  of 
the  states,  being  elected  by  these  to  execute  their  will.  They  consid- 
ered "  the  people  "  to  be  absolutely  sovereign  ;  the  states  to  be  "  the 
people;"  all  governments  to  be  created,  derivative,  and  vicarious; 
and  all  of  such  agencies  to  be  endowed  only  with  trusts  of  power,  and 
to  possess,  by  virtue  of  imparted  authority  alone,  a  coercive  jurisdic- 


12  A  GENERAL   VIEW. 

tion  over  the  individual  members  and  subjects  of  the  states.  No  one 
ever  hinted  that  these  governments  would  or  could  have  any  original 
or  inherent  power,  or  sovereignty,  i.  e.  "absolute  supremacy"  over 
states  and  people.  And  yet,  as  has  been  shown,  the  so-called  states- 
men and  expounders  of  the  day  venture  to  assert  that  the  government 
is  "  absolutely  supreme,"  and  holds  the  states  in  "  allegiance." 

The  Doctrine  of  the  Perverters.  —  For  immediate  and  direct  con- 
trast, let  us  here  note  the  leading  dogmas  of  the  Massachusetts  school 
of  so-called  expounders.  Claiming  to  cite  the  fathers  in  proof,  they 
teach  that  oneness  of  will  and  action,  and  not  a  concurrence  of  wills, 
caused  the  constitution ;  that  thereby  the  American  people,  though 
once  states,  have  become  a  national  unity  —  an  undivided  nation, 
the  apparent  subdivisions  of  which  are  provinces  or  counties  —  mere 
fractions  and  not  constituents  of  the  nation ;  that  the  constitution 
being  "  supreme  law  of  the  land,"  "  the  government "  has  "  absolute  su- 
premacy," and  a  right  to  exact  and  enforce  "  the  allegiance  of  the  states  " 
to  it ;  and  finally,  that  the  commonwealths  of  New  York,  Massachu- 
setts, Pennsylvania,  Virginia,  et  als.  have  no  status  or  rights  except 
such  as  are  reserved  and  assigned  to  them  in  the  constitution ;  or,  in 
other  words,  that  they  are  reduced  to  counties  or  provinces.  These 
ideas  are  expressed  in  Lincoln's  first  inaugural ;  in  the  address  of  the 
Philadelphia  Convention  of  1866  ;  in  Professor  Jameson's  work,  called 
"  The  Constitutional  Convention,"  in  the  New  York  Times  and  New 
York  World,  and  substantially  in  Webster's  speech  of  1833.  It  will  be 
duly  seen  that  all  history,  all  the  words  of  the  fathers,  all  the  records 
of  the  states,  and  all  the  archives  of  the  country  show  that  these  state- 
ments are  absolutely  untrue !  Such  teaching  assumes  that  we  have 
no  political  beings  called  states ;  no  "federal  constitution ; "  no 
"united  states;"  no  "union  of  states;"  and  no  "citizens  of  states," 
as  the  constitution  itself  teaches ;  but  that  the  states  are  consolidated 
into  one  state,  and  "  the  government,"  having  "  absolute  supremacy," 
is  to  control  and  protect  not  merely  the  people,  but  the  states  they 
compose,  as  subjects.  In  other  words,  we  have  an  empire  of  which 
"  the  government "  is  a  corporate  sovereign.  The  action  of  "  the  gov- 
ernment "  has  been  precisely  in  accordance  with  these  ideas.  It  has 
vindicated  its  "absolute  supremacy"  vi  et  armis,  and  coerced  the 
states  to  yield  their  wills,  and  consider  themselves  in  the  future  as 
aggregations  of  subjects,  whose  only  rights  are  "reserved"  in  "the 
great  charter"  —  the  constitution;  and  who  are  privileged,  as 
"  groups  of  voters,"  to  express  their  wishes  for  the  consideration  of 
"  the  government."  In  truth,  if  the  people  "  accept  the  situation  " 
the  states  are  no  more  !  Have  we  not  chains  already  imposed  upon 
us,  so  that  the  coming  tyrant  has  but  to  rivet  them,  in  order  to  com- 
plete the  subversion  of  our  polity  1 


PERVERSION.  13 

The  Self-Consolidation  of  "the  Government."  —  While  this  fraud- 
ulent and  treasonable  destruction  of  states,  and  consolidation  of  their 
people  into  an  undivided  nation  is  going  on,  another  radical  and  cor- 
responding change  is  being  wrought  in  the  character  and  theory  of 
"  the  government."  Originally,  a  "  senator  "  was  a  citizen  and  subject 
of  a  state,  elected  by  her  to  execute  her  will ;  the  "  representatives  " 
were  such  subjects,  elected  for  such  purpose  by  the  people  of  the 
state ;  the  senators  and  representatives  were  the  delegation  of  a  state 
to  the  congress  of  states ;  and  they,  with  the  executive  and  judicial 
officers  (these  also  being  elected  or  appointed  by  or  for  the  states), 
constituted  the  general  government.  Thus  we  see  that  our  states 
were  a  federation,  and  our  general  government  purely  a  federal  one. 
These  separately  elected,  separately  sworn,  and  separately  responsi- 
ble functionaries  were  sent  by  each  state  to  act  as  individuals,  with 
her  authority  for  the  good  of  all,  i.  e.  to  "provide  for  the  common 
defence  and  promote  the  general  welfare,"  and  to  be  checks  on  all  the 
other  functionaries  —  the  whole  system  being  one  of  checks  and  bal- 
ances, to  prevent  consolidation  and  tyranny.  But  these  separately 
elected  and  vicarious  creatures  have  effected  the  worst  form  of  consoli- 
dation, for  they  now  claim  corporate  capacity,  independent  existence, 
original  right  and  authority,  discretion  outside  of  the  constitution, 
regal  prerogatives,  and,  in  short,  all  the  essentials  of  sovereignty.  This 
self-formed  corporate  body  has  not  merely  an  esprit  de  corps,  but  a 
oneness  of  will  and  purpose  characteristic  alike  of  a  corporation,  an 
oligarchy,  or  an  autocrat ;  and  the  federal  legislature,  executive  and 
judiciary,  which  were  established  as  three  absolutely  independent 
institutions,  to  watch,  and,  if  necessary,  check  one  another,  are  now 
so  unified  as  to  act  with  one  mind  and  will  on  a  party  platform : 
thus  practically  changing  them  into  a  vast  and  chronic  conspiracy 
against  the  people's  liberty,  as  any  gang  of  men,  acting  with  one 
mind  in  the  hiding-places  of  the  constitution  and  government,  and 
constantly  influenced  by  power  and  money,  will  gradually  become. 
Is  our  polity  to  be  revolutionized?  Are  we  not  in  danger  of  revo- 
lution 1 

Ceesarism.  —  Under  the  forms  of  a  republican  federation,  then,  we 
have  a  consolidated  empire,  and  a  corporate  despot,  just  as  the  Ro- 
mans had  "  an  absolute  monarchy  disguised  in  the  form  of  a  common- 
wealth." [Gibbon.]  The  parallelism  will  hereafter  more  fully  appear. 

The  military-trained  and  military-souled  war-secretary  of  the  afore- 
said corporate  despot,  Gen.  Schofield,  said  in  1868  :  "In  the  Old  World, 
it  is  said  that  the  army  is  the  safety  of  the  empire ;  with  equal  truth 
we  may  say  that  the  army  is  the  safety  of  the  republic."  And  Gen.  W. 
T.  Sherman  said,  in  June,  1878,  to  the  cadets  of  West  Point :  "  Hayes 


14  A  GENERAL  VIEW. 

has  the  requisite  nerve  and  determination.  He  knows  his  right,  and 
dares  to  maintain  it ;  and,  what  is  more,  the  army,  sworn  to  defend 
the  constituted  authorities,  would  see  to  it  that  he  was  sustained  in 
the  effort.  The  graduates  of  West  Point  are  bound  by  their  oaths  to 
protect  the  government  in  fact,  of  which  President  Hayes  is  unques- 
tionably the  head."  Explained  by  the  events  and  revolutionary  teach- 
ings and  tendencies  of  the  last  fifteen  years,  all  this  means  that  what 
any  army-backed  despot  or  despotism  chooses  to  style  the  republic,  is 
to  be  preserved  by  the  army,  even  against  the  people  that  compose  such 
republic.  It  means  that  the  "  government "  has  the  right  to  enforce 
its  "  absolute  supremacy,"  vi  et  armis,  in  and  against  the  will  of  a  state, 
and  that  "so  far  state  sovereignty,"  to  use  the  words  of  Webster,  "is 
to  be  effectually  controlled."  All  this  has  the  full  and  clear  ring  of 
Csesarism,  and  it  is  consonant  with  Seward's  phrase,  "  If  they  don't 
keep  the  peace,  we  must  keep  it  for  them."  Both  are  symphonious 
with  the  "  little  bell,"  and  seem  to  harmonize  with  a  certain  noted 
phrase  of  the  imperative  mood,  "  Let  us  have  peace."  Nay,  more,  it 
means  that  a  Grant  may  become  "  a  personified  force-bill "  —  as  Wen- 
dell Phillips  called  him  —  in  our  once  free  country,  and,  at  will,  declare 
unhappy  Louisianians  or  New-Yorkers  to  be  banditti,  and  leave  them  to 
the  tender  mercies  of  some  future  Sheridan,  or  other  bold  dragoon.1 

Will  our  Peace  be  of  Contentment  or  Force  ?  —  A  military  man 
can  be  satisfied  with  the  "order"  that  "reigns  in  Warsaw:"  but  it 
was  hoped  that  when  President  Grant  came  to  realize  that  he  was  a 
civilian,  instead  of  a  soldier ;  that  he  must  act  by  the  written  discre- 
tion of  his  sovereigns,  instead  of  his  own ;  that  his  duty  was  to  exe- 
cute ready-made  civil  laws  for  all  the  people,  instead  of  enforcing 
peace  with  the  bayonet  in  a  discontented  section ;  that  our  govern- 
ment is  republican  and  not  despotic  ;  and,  above  all,  that  the  President's 
judgment  and  conscience  are  under  oath  "to  preserve,  protect',  and 
defend  the  constitution,"  and  not  under  a  mere  partisan  pledge  to 
observe  an  electioneering  platform,  —  he  would  have  given  to  his  ejacu- 
lation a  hortative  or  precatory,  instead  of  an  imperative  sense ;  and 
that  his  peace  signified  the  disestablishment  of  the  army,  and  the 
restoration  of  the  absolute  autonomy  of  the  states,  so  that  they,  as 
the  fathers  intended,  should  govern  themselves  —  locally  by  their  home 
agencies,  and  federally  by  their  federal  one.  Grant's  constitutional 
oath  —  like  that  of  every  officer  of  "the  government  "-  —  required 

1  In  December,  1874,  Gen.  Sheridan  went  to  Louisiana  from  a  distant  region,  at  once 
assumed  command,  and  telegraphed  to  President  Grant  to  declare  the  people,  or  part  of 
them,  banditti,  and  turn  them  over  to  him  (S.)  to  deal  with  as  such.  The  grounds  of 
such  intervention  were  mainly  false,  but  approval  of  his  view  of  things,  and  his  con- 
duct, was  at  once  telegraphed  back. 


PERVERSION.  15 

him  to  treat  the  states  as  sovereigns,  and  to  consider  armies  and 
the  commanders  thereof,  as  not  only  subjects  of  the  states,  but  raised 
and  supported  by  their  means,  and  moved  solely  by  their  authority. 
Nay,  more,  he  was  bound  by  his  oath  to  see  that  such  army  was  em- 
ployed for  defence,  and  not  for  attack  of  states ;  and  that  no  federal 
soldier  ever  crossed  a  state  boundary  except  by  her  command,  per- 
mission, or  call. 

A  president  should  but  see  and  know  and  remember  that  the 
states  are  equal  bodies.  No  power  can  be  above  them,  because  the 
constitution  is  their  law,  and  the  government  is  provided  for  in,  and 
controlled  by,  the  constitution.  That  instrument  says,  "  each  state 
shall  appoint"  presidential  electors.  For  the  said  states,  these  elec- 
tors chose  General  Grant.  He  was,  then,  the  electee,  servant,  and 
agent  of  the  said  states,  sworn  "  to  preserve,  protect,  and  defend 
the  constitution."  Hence,  to  keep  his  oath,  he  should  have  regarded 
and  obeyed  the  states  as  his  sovereigns,  and  dealt  with  Louisiana  just 
as  with  Massachusetts  and  New  York. 


CHAPTEK  III. 

HISTORY  REPEATS  ITSELF. 

ABOUT  forty  years  after  the  federal  constitution  went  into  effect, 
the  perverters  of  the  instrument  began  to  teach,  as  the  true 
meaning  of  it,  the  identical  assertions  made  originally  by  its  enemies 
to  prevent  its  adoption.  These  charges  were,  that  the  constitution 
purported  to  be  made  by  the  whole  people ;  that  it  consolidated  all 
the  states  into  one ;  and  that,  so  far  as  its  provisions  went,  "  so  far 
state  sovereignty  was  effectually  controlled"  by  "the  government.'' 
Such  was  the  fear  among  the  people  of  the  several  states  that  these 
charges  were  true,  that  it  was  with  the  utmost  difficulty  that  the 
friends  of  the  system  saved  it  from  defeat.  Washington,  Hamilton, 
Madison,  Wilson,  Dickinson,  Coxe,  Sherman,  Ellsworth,  Adams,  Ames, 
Parsons,  Patterson,  Livingston,  Pendleton,  Marshall,  and  many  others 
now  immortal,  met  and  triumphantly  refuted  them,  asserting  and 
proving  the  absolute  sovereignty  of  the  states,  and  the  vicarious,  dele- 
gative,  and  subordinate  character  of  the  federal  government.  Even  then 
the  system  barely  escaped  defeat  in  the  larger  states,  Massachusetts 
adopting  it  by  a  majority  of  19  in  a  convention  of  355  members; 
New  Hampshire  by  a  majority  of  11  in  103  members;  New  York  by 
a  majority  of  3  in  57;  and  Virginia  by  a  majority  of  10  in  168; 
while  North  Carolina  and  Rhode  Island  rejected  it  by  overwhelming 
majorities,  though  they  subsequently  joined  the  union.  Indeed,  Hil- 
dreth,  the  Massachusetts  historian,  thinks  a  majority  of  all  the  people 
of  the  states  were  opposed  to  the  constitution. 

Nathan  Dane,  of  Massachusetts,  one  of  the  original  enemies  of  the 
federal  system,  seems  to  be  entitled  to  the  honor  of  originating  this 
fallacious  exposition  of  the  same.  He  was  the  Gamaliel  of  Story 
and  Webster,  and  they  were  his  faithful  disciples.  The  three  may  be 
considered  as  the  founders  of  the  Massachusetts  school,  which  has  given 
ideas  and  arguments  to  what  was  first  a  faction,  then  an  enterprising 
minority,  and,  finally,  a  victorious  party,  engaged  in  overthrowing 
constitutional  liberty.  The  interpretations,  commentaries,  platforms, 
obiter  dicta,  etc.,  of  this  school,  have  finally  given  existence  to  a  sham 


HISTORY  REPEATS  ITSELF.  17 

or  simulacrum,  which  is  administered  in  place  of  the  real  constitution, 
and  serves  alike  to  mask  usurpation  and  tyranny,  and  conceal  from 
the  people  the  lifeless  remains  of  Freedom,  — 

"  For,  vampire-like,  fair  freedom's  foes, 
Have,  in  her  slumber,  sucked  her  life  away, 
And  left  her  throbless  corse  to  carrion  birds  a  prey !  " 

Such  teachings  legitimately  produced  the  traitorous  claim  by  the  gen- 
eral government  to  the  "  allegiance  "  of,  and  "  the  absolute  supremacy  " 
over,  "the  united  states,"  though  the  said  government  is  a  creation 
of  the  said  states,  and  is  personally  composed  of  their  citizens  and 
subjects.  And  this  theory  was  put  in  practice  in  the  recent  war,  for 
the  government  subjugated  the  states,  with  the  very  existence,  powers, 
and  war-means  it  held  from  them,  as  a  sacred  trust,  and  which  it  was 
bound  by  solemn  oath  to  use  only  for  their  "defence"  and  "welfare." 
In  this  we  have,  par  excellence,  the  crimen  Icesce  majestatis. 

Usurped  Control  of  Suffrage. —  Votes  are  franchises,  given,  of 
original  right,  by  the  people  of  a  state,  as  a  body-politic,  to  them- 
selves as  individuals,  or  such  of  themselves  as  they  think  fit.  Such 
votes  are  franchises,  created  by  original  inherent  power,  and  are  in- 
struments for,  and  the  only  means  of,  expressing  the  people's  will. 
By  and  through  them,  the  people  give  existence  to  the  constitutions 
and  so-called  governments,  these  being  personally  composed  of  the 
citizens  and  subjects  of  the  states.  Hence  a  governmental  right  to 
control  suffrage  is  absurd.  As  Montesquieu  says  :  "  The  laws  estab- 
lishing the  right  of  suffrage "  are  "  fundamental "  to  the  republic ; 
and,  consistently,  we  find  all  voting  rights  fixed  originally,  absolutely, 
and  without  appeal,  in  the  organic  laws  of  the  states,  by  the  sovereign 
people  thereof. 

But  the  federal  agency  now  makes  revolutionary  claim  to  the 
"absolute  supremacy"  of  the  country,  and  to  the  "allegiance  of  the 
states."  Its  dogma  is  that  of  Lincoln,  namely,  that  the  former  sove- 
reigns of  the  country  have  no  status  or  rights  except  those  reserved 
in  the  national  constitution.  Of  course  the  insignificant  monads 
called  votes  are  deep  down  in  the  all-swallowing  maw.  The  people 
may  still  imagine  their  voting  power  to  be  above  the  government ; 
but  they  will  soon  realize  that  they  are  merely  to  elect  the  directory 
of  a  corporate  monarchy,  and  that  they  have  about  the  same  amount  of 
self-government  the  English  voters  enjoy  in  electing  their  members  of 
parliament,  and  barely  more  than  the  mockery  which  until  recently 
amused,  if  it  did  not  content,  the  suffragists  of  France.  It  is  only  a 
mockery  of  self-government,  where  any  other  authority  than  the  people 
themselves  can  appoint  or  control  the  voters.  Despotism  can  always 

2 


18  A   GENERAL   VIEW. 

find  tools  enough  to  play  the  republic  before  the  people,  while  imperial 
polity  is  being  insidiously  fastened  upon  them.  The  retention  by  the 
people  themselves  of  this  control  is,  ipso  facto,  the  absolute  autonomy 
of  the  original  sovereigns  of  the  country,  under  which  the  federal 
and  state  governments  are  alike  agents. 

The  American  "  Divine  Right."  —  In  addition  to  the  misteaching 
of  the  people  above  mentioned,  the  same  pious  fraud  has  deluded 
them  that  ever  was  used  in  the  Old  World  to  reconcile  the  people  to 
the  rule  of  kings.  It  is  taught  that  our  constitution,  instead  of  being 
merely  an  earthly  instrument,  involving  the  political  and  business 
relations  of  states,  is  heaven-inspired,  perfect,  and  to  last  forever. 
Buchanan  and  others  asserted  its  divine  origin,  and  its  ''essential 
attribute  of  perpetuity."  It  reasonably  follows  from  such  premises 
that  "the  government,"  —  as  such  divine  institution  ought  to, — pos- 
sesses "absolute  supremacy;"  that  "the  states  are  bound  in  alle- 
giance "  to  the  government ;  and  that  "  state  sovereignty  is  effectually 
controlled,"  —  the  "  states  having  no  status  or  rights"  but  such  as  the 
nation,  in  its  "  supreme  law,"  gives  them.  No  stronger  terms  than 
these  of  Lincoln,  Webster,  and  the  Philadelphia  Convention  could 
possibly  be  used  to  express  the  sovereignty  of  the  British,  French,  or 
Prussian  governments  over  their  provinces  and  people  ;  and  they  are 
utterly  baseless,  and  absurdly  inconsistent  with  republican  ideas. 

The  Imported  Theory  of  the  Social  Compact.  —  The  perverters 
try  to  delude  the  people  into  ignoring  the  real  social  compact  which 
constitutes  an  American  state,  and  unwittingly  adopting  the  exploded 
European  theory  of  the  social  compact,  wherein  the  people  are  said 
to  agree  to  pay  taxes  and  supply  "  the  government,"  or  monarch,  with 
purple,  fine  linen,  and  sumptuous  fare,  while  it  or  he  is  to  govern  and 
protect  the  people.1  And  we  have  militarily  educated  and  trained  our 
Grants,  McClellans,  Shermans,  Hancocks,  Schofields,  Blairs,  and  Sheri- 
dans,  so  as  to  have  them  ready  to  maintain  by  force  this  social  com- 
pact, and  show  that  "the  army  is  the  safety  of  the  republic"  thus 
formed.  And  these  pseudo-republicans  all  contend  that  "  the  alle- 

1  These  perverters  say  that  Hume  and  others  exploded  this  theory,  and  that,  there- 
fore, the  idea  of  a  social  compact  in  America  must  be  discarded,  except  as  regards  the 
compact,  by  which,  they  say,  a  nation  was  formed.  They  ignore  the  fact  that  society 
was  already  formed  and  complete  (as,  indeed,  it  had  been  for  generations),  when  the 
federal  system  was  adopted,  and  the  so-called  nation  made;  and  that  societies,  each  act- 
ing for  itself,  with  its  own  mind  and  will,  made  that  system,  and  endowed  it  with  its 
only  existence  and  force.  Nay,  more,  they  conceal  the  fact  that  Hume  did  not  discuss 
the  idea  of  the  republican  social  compact,  but  expressly  said,  writing  before  the  inde- 
pendence of  our  states:  "  My  intention  here  is  not  to  exclude  the  consent  of  the  people 
from  being  one  just  foundation  of  government,  where  it  has  place.  It  is  surely  the  best 
and  most  sacred  of  an}-.  I  only  pretend  that  it  has  very  seldom  had  place  in  any  degree, 
and  that,  therefore,  some  other  foundation  of  government  must  also  be  admitted." 
[Hume's  Essays,  No.  xii.] 


HISTORY  REPEATS  ITSELF.  19 

giance,"  both  of  citizens  and  states,  is  due  to  "  the  government,"  which 
hires  and  uniforms  them,  and  is  to  be  enforced  by  arms,  if  not  vol- 
untarily yielded.  And  "conservative"  Liebers,  Curtises,  Johnsons, 
Jamesons,  "Intelligencers,"  "Worlds,"  and  such  like,  all  over  the 
country,  stand  ready  to  justify  by  argument  these  outrageous  perver- 
sions of  constitutional  republicanism.  Starting  with  the  postulate  of 
a  social  compact  forming  a  nation,  the  argument  of  the  perverters 
is  easy,  compendious,  and  practical.  The  "  national  constitution  "  is 
"  the  supreme  law  of  the  land."  This  gives  "  the  government "  "  ab- 
solute supremacy."  The  duty  to  protect,  which  devolves  on  the  gov- 
ernment, is  coupled  with  the  right  of  control,  and  this  extends  to  the 
effectual  control  of  state  sovereignty,  as  well  as  of  all  the  civil  and 
political  rights  of  the  people.  And,  though  there  are  limits  to  the 
authority  of  the  government,  which  are  admitted,  it  is  claimed  that 
these  are  to  be  determined  by  itself.  Said  Daniel  Webster :  "  It 
rightfully  belongs  to  congress,  and  the  courts  of  the  united  states,  to 
settle  the  construction  of  this  supreme  law  in  doubtful  cases ; "  that 
is  to  say,  the  government  is  (as  Jefferson  phrased  the  claim)  "  the 
exclusive  and  final  judge  as  to  the  extent  of  the  powers  delegated  to 
itself."  And  finally,  "  the  government "  has  the  inherent  right  to 
preserve  its  existence  and  its  powers. 

Here  is  exhibited  the  precise  change  Burke  refers  to,  as  the  one 
whereby  "all  the  popular  magistracies  in  the  world  have  been  per- 
verted from  their  purposes,"  namely,  "  the  change  from  an  immediate 
state  of  procuration  and  delegation,  to  a  course  of  acting  as  from  original 
power."  We  have,  as  had  the  Romans  in  the  time  of  Augustus  and  his 
successors,  imperialism  "disguised  by  the  forms  of  a  commonwealth." 

A  Roman  Chapter  of  American  History.  —  A  few  extracts  from 
the  third  chapter  of  Gibbon's  "  Decline  and  Fall"  are  apposite,  instruct- 
ive, and  warning  :  "  The  tender  respect  of  Augustus  for  a  free  consti- 
tution which  he  had  destroyed,  can  only  be  explained  by  an  attentive 
consideration  of  the  character  of  that  subtle  tyrant.  A  cool  head,  an 
unfeeling  heart,  and  a  cowardly  disposition  prompted  him,  at  the  age 
of  nineteen,  to  assume  the  mask  of  hypocrisy,  which  he  never  after- 
wards laid  aside." 

"  When  he  framed  the  artful  system  of  imperial  authority,  his  mod- 
eration was  inspired  by  his  fears.  He  wished  to  deceive  the  people 
by  an  image  of  civil  liberty,  and  the  armies  by  an  image  of  civil  gov- 
ernment." "  The  names  and  forms  of  the  ancient  administration  were 
preserved  by  him  with  anxious  care.  The  usual  number  of  consuls, 
pnetors,  and  tribunes  were  annually  invested  with  their  respective 
signs  of  office,  and  continued  to  discharge  some  of  their  least  important 
functions."  "  Caesar,"  continues  Gibbon,  "  had  provoked  his  fate  by 


20  A  GENERAL  VIEW. 

ostentatiously  taking  the  title  of  king,  while  he  might  have  reigned 
as  such  under  the  title  of  consul  or  tribune.  Augustus  was  sensi- 
ble that  mankind  is  governed  by  names ;  nor  was  he  deceived  in  his 
expectation  that  the  senate  and  people  would  submit  to  slavery,  pro- 
vided that  they  were  respectfully  assured  that  they  enjoyed  their 
ancient  freedom."  "  To  explain  in  a  few  words,  the  system  of  the  im- 
perial government,  as  it  was  instituted  by  Augustus,  and  maintained 
by  those  princes  who  understood  their  own  interest  and  that  of  the 
people,  it  may  be  denned  as  an  absolute  monarchy  disguised  by  the 
forms  of  a  commonwealth.  The  masters  of  the  Roman  world  envi- 
roned their  throne  with  darkness,  and  humbly  professed  themselves 
the  accountable  ministers  of  the  senate,  whose  supreme  decrees  they 
dictated  and  obeyed.  The  face  of  the  court  corresponded  with  the 
forms  of  the  administration.  The  emperors,  if  we  except  those  tyrants 
whose  capricious  folly  violated  every  law  of  nature  and  decency,  dis- 
dained that  pomp  and  ceremony  which  might  offend  their  country- 
men, but  could  add  nothing  to  their  real  power.  A  feeble  senate  and 
enervated  people  cheerfully  acquiesced  in  the  pleasing  illusion,  as  long 
as  it  was  supported  by  the  virtue,  or  even  by  the  prudence,  of  the 
successors  of  Augustus.  It  was  a  motive  of  self-preservation,  not  a 
principle  of  liberty,  that  animated  the  conspirators  against  Caligula, 
Nero,  and  Domitian.  They  attacked  the  person  of  the  tyrant,  with- 
out aiming  their  blows  at  the  authority  of  the  emperor." 

In  the  reign  succeeding  that  of  Augustus,  "  the  assemblies  of  the 
people  were  forever  abolished,  and  the  emperors  were  delivered  from 
a  dangerous  multitude,  who,  without  restoring  liberty,  might  have 
disturbed  and  perhaps  endangered  the  established  government."  And 
some  of  the  successors  of  Augustus,  "  scrupulously  observed  his  con- 
stitutional fictions."  As  late  as  the  age  of  the  Antonines  the  Greek 
historians  say,  that  "  although  the  sovereign  of  Rome,  in  compliance 
with  an  obsolete  prejudice,  abstained  from  the  name  of  king,  he 
possessed  the  full  measure  of  regal  power."  As  imperialism  became 
more  fully  established,  the  forms  and  shams  were  dispensed  with. 
"The  fine  theory  of  a  republic,"  says  Gibbon,  "insensibly  vanished." 

History  has  repeated  itself;  republicanism  has  perished  in  America, 
as  it  did  in  Rome.  The  form  is  left,  but  the  soul  is  wanting.  "  Ab- 
solute supremacy"  in  "the  government"  and  republican  freedom  can- 
not co-exist,  for  the  reason  that  the  latter  is  the  absolute  right  of  the 
people  to  govern  themselves,  and  to  make  and  unmake  all  govern- 
ments at  will.  If  the  people  would  enjoy  freedom  again,  they  must 
retake  sovereignty  —  "  peaceably  if  they  can,  forcibly  if  they  must." 

"Who  would  be  free 
Themselves  must  strike  the  blow." 


HISTORY  REPEATS  ITSELF.  21 

Philosophy  teaches  us  specially,  by  the  examples  of  Roman  his- 
tory. We  find  there  the  same  perversions  and  usurpations,  and  the 
same  destruction  of  liberty,  in  the  name  of  liberty,  that  we  have  ex- 
perienced. "  Marius  and  Csesar,"  says  Gibbon,  "  subverted  the  con- 
stitution of  their  country,  by  declaring  themselves  the  protectors  of 
the  people ; "  and  Augustus  pretended  to  be  a  servant  of  the  people, 
while  destroying  their  liberty,  and  making  himself  a  dictator.  He 
established  "  an  absolute  monarchy,  disguised  by  the  forms  of  a  com- 
monwealth." "  His  successors  for  a  while  observed  his  constitutional 
fictions,"  but  the  "  republic  insensibly  vanished."  Like  ours,  the  rep- 
resentatives of  the  Roman  people  ignored  their  delegative  capacity  and 
acted  "  as  from  original  power."  Those  perverters  and  usurpers,  like 
ours,  pleaded  necessity ;  the  welfare  of  the  people ;  the  public  safety ; 
the  life  of  the  nation,  and  the  inherent  right  to  preserve  their  own 
existence.  With  them,  too,  "  the  army  was  the  safety  of  the  repub- 
lic "  !  This  institution,  composed  of  hirelings,  as  time  advanced, 
became  more  and  more  recruited  from  foreign  sources,  and  more  and 
more  depraved  in  materials.  It  acted  long  as  an  efficient  instrument 
of  tyranny,  and  finally  set  up  the  business  for  itself,  and  sold  the  em- 
pire at  auction ! 


CHAPTER  IV. 

SECESSION    AND    COEKCION. 

IT  is  incontrovertible  that  the  federal  system  is  states  united,  and 
that  these  must  always  be  sovereign,  and  superior  to  the  gov- 
ernments they  create.  It  is  equally  plain  that  the  "  national  unity," 
the  "  absolute  supremacy  "  of  "  the  government,"  and  the  allegiance 
of  the  states  thereto,  which  are  asserted  by  the  Massachusetts  school, 
are  absurd  and  pernicious,  as  well  as  traitorous  falsehoods. 

This  "  federal  system  "  is  precisely  what  Montesquieu  and  other 
publicists  happily  call  a  "  republic  of  republics."  Natural  persons 
by  social  compact  form  the  society  called  the  state,  which  is  a  repub- 
lic. Such  state  is  a  moral  or  political  person,  as  contradistinguished 
from  a  natural  one.  For  mutual  protection,  and  general  government, 
it  joins  other  such  political  persons  in  federal  compact,  thus  forming 
the  "  republic  of  republics,"  or  "  union  of  states,"  as  the  federal 
instrument  characterizes  the  system  formed  by  it.  "  Community  of 
communities,"  "  confederation  of  republics,"  "  united  states,"  etc., 
etc.,  are  other  phrases  of  public  writers,  signifying  the  same  political 
system. 

Natural  persons,  then,  form  states,  while  these,  as  political  per- 
sons, form  the  federation  called  "  the  United  States."  The  con- 
stitution contemplates  these  political  bodies  as  solely  the  sources  of 
power,  and  of  elective  right.  Every  voter  acts  for  the  state,  and  gets 
his  special  endowment  of  authority  to  vote  from  her  alone.  She 
settles  the  matter,  as  a  sovereign,  in  her  organic  law.  Hence  we  see 
that  the  representatives  are  elected  by  the  states,  as  are  the  senators 
and  the  president ;  and  that  all  of  these,  together  with  the  officers 
they  appoint,  are  "the  government  of  the  .  .  .  states"  under  "the 
constitution  of  the  .  .  .  states." 

Omitting  from  the  above  constitutional  phrases  the  participial  adjec- 
tive, which,  with  the  sense  of  joined  or  associated,  qualifies  or 
describes  states,  we  easily  distinguish  between  the  political  entities 
that  form  the  federal  system,  and  their  mere  qualities ;  and  see  that 
the  only  nation  we  have,  or  can  have,  is  self-united  or  associated 


SECESSION  AND  COERCION.  23 

states  —  the  system  being  properly  described  as  a  "  republic  of  repub- 
lics," or  a  "union  of  states." 

No  Constitutional  Coercion  of  States.  —  Our  states  being  equal 
and  voluntarily  joined,  the  constitution  being  the  expression  of  their 
will,  and  the  federal  government  being  their  Agency,  in  the  very 
nature  of  things  no  coercive  power  over  them  could  be  derived  from 
the  constitution.  Moreover,  if  they  were  once  voluntary  parties, 
they  could  not  have  become  involuntary  ones,  without  their  own 
action  ;  for  they  have  the  sole  power  of  amendment  [see  Art.  V.], 
and,  to  cap  the  climax,  the  fathers  were  unanimous  in  excluding  the 
power  of  coercion  from  the  federal  compact,  and,  out  of  abundance  of 
caution,  guarding  against  it  by  amendment,  all  of  which  will  be  here- 
after fully  shown.  Buchanan,  Lincoln,  and  others  argued  that  the  re- 
cent exertion  of  federal  force  against  certain  states  was  not  coercion  of 
states,  but  was  military  coercion  of  persons,  banded  to  oppose  the 
federal  laws,  or,  in  other  words,  the  putting  down  of  a  rebellion ;  but 
such  views  are  dignified  by  calling  them  weak  sophistry.  For  the  said 
states  acted  as  bodies  in  making  the  constitution ;  they  moved  as  such 
in  seceding ;  and  they  warred  as  such  in  resisting  coercion.  And,  in 
each  case,  they  respectively  exercised  that  right  of  command  over  the 
citizens  which  results  from  the  social  compact,  binding  each  to  obey 
the  collective  will ;  and  which  is  sovereignty  itself.  On  the  other 
hand,  the  federal  functionaries  were  fighting  to  enforce  an  ordi- 
nance which  the  state  had  originally  ordained,  but  had  repealed, 
and  made  it  treasonable  to  obey,  namely,  the  ordinance  of  ratifi- 
cation, which,  as  to  the  said  state  and  her  citizens,  gave  to  the  said 
constitution,  and  the  resultant  government,  their  only  possible  valid- 
ity and  warrant. 

The  only  Basis  of  Coercion.  —  To  coerce  a  state  is  unconstitu- 
tional ;  but  it  is  equally  true  that  the  precedent  of  coercing  states 
is  established,  and  that  it  is  defensible  under  the  law  of  nations. 
If  this  be  correct,  all  will  agree  that  such  ultima  ratio  should  be 
placed  at  once  on  its  own  ground,  and  its  limits  defined,  so  that  our 
constitution  may  be  vindicated  and  held  sacred  in  the  future,  and 
the  conscience  of  the  people  of  the  victorious  states  be  relieved  of 
the  charge  of  violating  the  "  supreme  law  of  the  land,"  in  coercing  the 
states  that  ordained  it,  and  killing  their  people  for  defending  them ; 
for  nothing  can  more  demoralize,  and  finally  demonize,  the  people, 
individually  and  collectively,  than  the  consciousness  of  having  com- 
mitted such  crimes,  the  determined  enjoyment  of  the  fruits  thereof, 
and  the  constant  making  of  false  excuses  to  their  consciences  and  to 
the  world. 

Where  the  constitution  does  not  provide  a  treaty  stipulation  or 


24  A  GENERAL  VIEW. 

conventional  rule,  by  which  to  settle  a  question  arising  among  or 
between  our  states,  the  law  of  nations  is  to  be  resorted  to,  for  the 
constitution  only  displaces  such  law  pro  tanto.  This  law  would,  if 
the  federal  compact  were  annulled,  at  once  govern  all  questions 
among  our  states,  ju§t  as  it  now  does  those  arising  among  the  states 
of  Europe.  The  truth  is,  the  purpose  of  the  federal  compact  was  the 
settlement  of  such  international  questions  as  it  provides  for  and  closes, 
such  questions  having  been,  as  long  as  they  were  open  and  debatable, 
international  ones.  And  it  may  be  well  to  observe  here,  that  the 
word  "  states,"  used  in  the  constitution  to  designate  the  contracting 
powers  that  ratify  and  make  it,  is  used  in  juxtaposition  with,  and  has 
the  identical  meaning  of,  the  word  "  states,"  that  signifies  the  powers 
of  Europe  [see  Art.  III.,  §  2  ;  Art.  XL,  amendments] ;  and  it  is 
absurd  to  suppose  that  Massachusetts,  New  York,  or  Virginia,  in 
making  a  constitution  of  government,  deprived  herself  of  statehood 
or  nationality,  when  she  merely  declared  her  will,  which  remained  in 
her,  and  parted  with  no  portion  of  her  own  being;  and  when  her 
name,  description  and  essentials,  were,  after  associating,  entirely 
unchanged.  Neither  the  constitution  nor  history  warrants  the  re- 
stricted meaning  vulgarly  given  in  our  country  to  the  word  "  states." 
Accurately  speaking,  it  was  nations  or  states  that  federated,  and 
thereby  formed  our  "community  of  communities,"  or  "republic  of 
republics." 

In  seceding,  the  Southern  commonwealths  exercised  an  indispu- 
table right,  though  they  acted  with  impolicy,  and  erred  in  ignoring 
the  operation  of  international  law.  In  higher  politics  —  those  of 
nations  in  their  dealings  with  one  another  —  acts  become  precedents, 
and  make  rules  of  law.  So,  in  the  case  before  us,  the  successful 
coercion  of  states  made  a  precedent,  and  established  a  law.  As  seces- 
sion affected  the  interest  of  the  adhering  states,  questions  arose  for 
them  to  consider ;  and,  treating  the  matter  as  one  in  foro  conscientice, 
they  could  cogently  reason  that  the  case  of  a  seceding  state,  to  make 
her  secession  justifiable  under  the  jus  gentium,  should  contain  the 
same  ingredient  that  makes  a  homicide  one  of  self-defence  —  the  pre- 
vious "  retreat  to  the  wall." 

The  Southern  commonwealths  were  really  fighting  for  constitutional 
liberty,  which,  under  the  circumstances,  they  thought  seriously  im- 
perilled, and  likely  to  be  preserved  by  secession.  Earl  Russell's  asser- 
tion was  true,  that  "  the  South  fought  for  independence,  the  North 
for  empire."  The  wish  of  the  former  for  constitutional  liberty  and 
independence  was  manifested  by  their  adopting  the  federal  constitu- 
tion, with  scarcely  a  change.  Secession  was  justifiable  if  there  was 
no  other  mode  of  self-preservation,  or  remedy  for  wrongs;  for  self- 


SECESSION  AND  COERCION.  25 

preservation  was  the  first  law  of  nature  to  states  as  well  as  persons. 
But  they  had  not  properly  come  to  this  last  resort,  as  we  shall  see, 
by  noting  the  unpleaded  pleas  of  the  states  that  remained  united  — 
pleas  under  the  jus  gentium. 

1st.  These  had  the  right  to  assume  that  Providence  intended,  as 
our  fathers  did,  that  all  the  territory  between  British  America  and 
Mexico  should  be  under  one  political  system,  and  they  had  a  right 
(not  under  the  constitution,  which 'the  state  voluntarily  made,  and 
could  voluntarily  abandon,  but)  under  the  jus  gentium  to  prevent  or 
to  cure  disruption. 

2d.  They  had  the  right  to  object  to  the  establishment  of  a  contig- 
uous foreign  state  or  federation,  with  its  necessary  rivalry,  and 
antagonistic  interests  and  policy,  and  the  inevitable  and  ever-recurring 
international  troubles. 

3d.  They  could  complain  that,  in  spite  of  constitutional  engage- 
ments, as  well  as  in  disregard  of  the  respect  due  to  the  fathers, 
secession  should  be  resorted  to  before  exhausting  all  the  remedies 
contemplated  and  provided  for  in  the  constitution,  or  arising  out 
of  the  circumstances;  especially  as  Congress,  the  Supreme  Court, 
and  a  numerical  majority  of  about  1,000,000  popular  votes,  were 
on  the  side  of  conservatism  against  a  weak  president,  and  could 
make  the  remedies  efficient.  This  alone  was  justification  enough 
under  the  jus  gentium  for  the  adhering  states  to  coerce  back  the 
seceding  ones. 

And  other  pleas  might  have  been  made  —  as  to  the  territory  occu- 
pied by  the  new  states,  as  to  forts,  armaments,  public  property,  etc., 
as  well  as  the  federal  debt.  In  all  these  cases,  precision  of  pleading 
and  absolute  sufficiency,  were  unnecessary,  for  states  are  to  judge  for 
themselves,  in  the  last  resort,  as  to  subjects  of  complaint  and  cases  of 
war ;  and  our  states  in  their  federal  constitution,  provided  no  mode 
of  settlement  or  tribunal  for  such  matters,  so  that  the  law  of  nations 
was  the  only  resort  for  rules  of  action. 

And  here  it  is  well  to  observe  that  while  the  seceding  states  acted 
with  impolicy,  and  were  wrong  in  the  respects  and  to  the  degree 
mentioned,  the  coercing  ones  were  gravely  to  blame  for  the  original 
causes  of  the  trouble  —  for  constant  and  manifold  aggressions  and 
acts  of  injustice  ;  and,  finally,  for  their  non-conciliatory  and  uncom- 
promising spirit,  and  their  disinclination  to  resort  to  diplomatic  expe- 
dients under  the  law  of  nations  to  avoid  so  awful  a  recourse  as  war, 
which,  if  it  can  be  avoided  with  honor  and  integrity,  is  a  most  heinous 
crime.  And,  moreover,  a  party  demanding  justice  before  any  tribunal, 
must  himself  have  sought  to  do  justice. 

Our  System  as  thus  Modified.  —  The  precedent,  then,  may  be 


26  A  GENERAL  VIEW. 

considered  as  established  (not  in  the  constitutional,  but)  in  the  inter- 
national part  of  our  law  and  politics,  that  all  other  means  of  getting 
justice,  and  preserving  self-government  and  statehood,  must  be  ex- 
hausted before  secession  is  allowable.  But  it  is  as  republics  that 
states  are  to  be  held  in,  or  coerced  back  to,  the  union ;  for  the  great 
end  always  in  view  is  the  preservation  of  constitutional  liberty,  as 
established  in  the  states,  under  the  guidance  of  the  fathers ;  and  this 
necessitates  absolute  self-government  of  the  people  as  organized. 

These,  then,  may  be  considered  as  the  cardinal  principles  of  our 
system,  as  it  stands  at  present :  1.  We  have  states  self-associated  for 
their  self-protection  and  self-government.  2.  Their  status  is  that  of 
sovereign  political  bodies,  known  to  the  law  of  nations,  and  described 
in  the  constitution  as  states.  3.  Being  republics  or  self-governing 
peoples,  they  must,  according  to  the  law  of  their  nature,  govern 
themselves,  not  in  any  qualified  sense,  but  absolutely.  4.  Their  gov- 
ernments, state  and  federal,  are  agencies,  and  subordinate  to  them. 
5.  The  federal  agency  has  the  joint  authority  of  the  states  to  govern 
their  citizens  within  certain  limits,  and  wield  the  coercive  means  en- 
trusted to  it ;  but  there  is  but  one  rule  of  duty  for  it,  i.  e.  the  consti- 
tution, which  each  member  of  the  agency  is  sworn  strictly  to  observe, 
and  which  cannot  be  disregarded  without  perjured  usurpation.  6.  The 
states  must  remain  in  the  union,  till  the  last  remedy  the  constitution 
affords  against  injustice,  and  loss  of  self-government  and  statehood,  has 
been  resorted  to.  7.  When  constitutional  means  are  exhausted,  or 
show  themselves  to  be  vain,  any  means  of  self-preservation  is  justifia- 
ble to  a  state,  for  it  is  according  to  the  first  law  of  nature.  8.  If 
secession  be  the  remedy  a  state  finally  determines  on,  it  affords  the 
occasion  for  diplomacy  or  war,  as  among  other  nations. 

Two  Important  Ideas. —  1.  Suppose  given  states,  then,  to  have 
gone  through  the  forms  of  secession  :  the  adhering  ones,  without  de- 
nying either  the  fact  or  the  right  of  secession,  may,  for  the  sake  of 
the  argument  (i.  e.  the  ultima  ratio),  concede  that  the  former  are  out 
of  the  union,  proceed  to  fight  them  as  foreign  states,  amenable  to  the 
jits  gentium,  and  enforce  their  return  —  controlling  and  using  there- 
for, the  federal  agency  and  its  forces ;  while,  on  the  other  hand,  the 
coerced  states  cannot  invoke,  as  against  such  coercion,  the  constitu- 
tion they  have  abandoned. 

2.  Upon  such  basis,  the  coercion  of  states  is  not  inconsistent  with 
the  federal  compact.  But  the  states  victorious  in  the  recent  war, 
claimed  that  the  acts  of  secession  were  null ;  and  that  they  resorted 
to  constitutional  coercion.  By  these  pleas  they  simply  convicted 
themselves  of  warring  upon  states  in  the  union,  of  violating  the  con- 
stitution, and  of  causing  flagrant  usurpation  and  perjury  on  the  part 


SECESSION  AND  COERCION.  27 

of  their  rulers.  Nay,  more,  they  have  done  the  infinite  mischief  of 
making  these  high  crimes  precedents  for  the  future ;  of  justifying 
pleas  of  necessity  for  arbitrary  acts  —  the  very  things  constitutions 
were  established  to  prevent ;  of  introducing  and  vindicating  unlimited 
discretion  and  regal  prerogatives  in  the  federal  agency ;  and,  finally, 
of  showing  the  states  that,  if  aggrieved,  their  only  alternatives  are 
submission  or  war  I  Such  were  not  the  ideas  of  the  fathers  ! 

As  to  the  right  of  secession,  it  will  hereafter  be  shown,  by  author- 
ities that  no  one  will  venture  to  gainsay,  that  it  is  (not  constitutional 
but)  inherent  and  inalienable  :  that  it  is  absolutely  essential  to,  and 
pro  tanto  identical  with,  freedom ;  and  that  it  was  taken  for  granted, 
or  expressly  stated  by  the  fathers,  as  indispensable  to  preserve  state- 
hood and  liberty.  It  is,  indeed,  a  right  as  absolute  and  indestructible 
as  the  state  itself.  Without  it  sovereignty  cannot  exist,  and  there 
can  be  no  self-preservation  of  the  original  and  only  constituents  of 
our  "  republic  of  republics."  l 

1  Every  American  ought  to  read  "  Is  Davis  a  Traitor?  "  by  Professor  Bledsoe.  Most 
conclusively  does  it  vindicate  the  right  of  secession ;  and  it  forms  the  best  criticism  ever 
written  of  the  constitutional  expositions  of  Story  and  Webster.  With  great  deference, 
however,  I  object  to  his  implication  that  secession  is  a  constitutional  right.  So  with  the 
assumption  of  Mr.  A.  H.  Stephens  and  others,  in  1868,  at  the  White  Sulphur  Springs, 
that  the  right  of  secession  can  be  abandoned.  Self-preservation  is  the  first  law  of 
nature  —  most  especially  to  commonwealths;  and  God  designs  a  state  to  secede,  if  her 
"defence"  and  "welfare,"  which  He  has  charged  her  with  preserving  and  promoting, 
require  it. 


UNIVERSITY 


CHAPTEE  V. 

REBELLION  OR  NOT? 

ASSUMING  it  to  be  a  principle  or  rule  established  by  the  war, 
that  if  one  of  our  sovereign  states  secedes  from  the  union  with- 
out first  exhausting  all  the  means  of  justice  the  constitution  affords, 
she  is  to  be  forced  back  into  the  union,  to  govern  herself  therein ;  let 
us  look  introductory,  at  another  intensely  interesting  and  vital  ques- 
tion, which  recent  events  have  forced  upon  the  American  people,  and 
which  the  perverters  have  made  every  possible  effort  to  dodge,  and 
prevent  investigation  and  decision  upon. 

"Were  the  Confederates  Rebels  and  Traitors  ?  —  It  is  anxiously 
asked  by  all  thoughtful  and  conscientious  men,  who  seek  for  constitu- 
tional truth  and  know  its  value  :  What  law,  divine,  international  or 
civil,  consigned  Davis,  Lee,  and  the  other  confederates  to  death  (for 
all  alike  are  guilty  or  not  guilty),  when  states,  as  political  bodies,  or 
vehicles,  carried  them  —  without  their  volition  —  from  the  union,  and 
constrained  them  to  obedience  and  military  service ;  and  when  this 
obedience  ran  on  all  fours  with  the  noblest  impulses  of  the  human 
heart,  and  with  the  first,  best,  and  most  imperative  law  of  nature  — 
self  preservation  ?  for  every  member  or  citizen  of  such  state,  who 
obeyed  her,  was  defending  his  home,  his  family  and  kindred,  his 
friends,  his  neighbors  and  fellow-citizens,  and  the  commonwealth  which 
involved  and  protected  them  all  —  in  short,  everything  for  which  a 
man  wishes  to  live.  In  truth,  vindicating  the  action  of  Davis  and 
Lee  is  vindicating  American  institutional  liberty,  or  the  right  of  the 
American  commonwealths  to  exist,  and  to  exercise  free  will  in  self- 
government,  whenever  and  however  they  please. 

A  state  is  the  citizens  thereof.  She  is  a  complete  political  body, 
formed,  as  Massachusetts,  in  her  organic  law,  declares,  by  "a  social 
compact,  in  which  the  whole  people  covenants  with  each  citizen,  and 
each  citizen  with  the  whole  people,  that  all  shall  be  governed  by  cer- 
tain laws  for  the  common  good."  Collectively,  therefore,  the  citizens 
govern,  while  individually  they  obey,  each  citizen  having  two  capaci- 
ties —  the  one  as  a  voter  or  governor,  and  the  other  as  a  subject.  It 


REBELLION  OR  NOT?  29 

is  obvious,  then,  that  each  citizen  must  obey  the  body,  she  having,  by 
immediate  grant  in  the  social  compact,  actual  possession  of  him,  and 
full  power  to  coerce  and  punish  him.  So  that  while,  on  the  one  hand, 
the  citizens  must  absolutely  obey  all  her  political  determinations,  on 
the  other,  it  must  be  right,  and  not  treasonable,  for  them  to  disobey 
any  counter  authority.  She  must  be  solely  and  always  the  supreme 
power. 

This  commonwealth  of  citizens,  in  her  organic  law,  endows  fit  mem- 
bers with  suffrage,  thus,  by  virtue  of  original,  absolute  and  inherent 
right,  ordaining  the  actual  and  efficient  governing  power,  which  is  a 
delegative  trust.  Thus  we  see  that  the  commonwealth  is  the  real 
government,  while  the  body  of  electors  is  its  original  agency  of  gov- 
ernment, by  and  through  which,  existence  and  authority  are  given  to 
all  constitutions,  so-called  governments,  and  officials,  state  or  federal. 
This  exhibits  our  representative  republicanism,  or  self-government. 

The  citizen  votes  for  the  safety  and  welfare  of  the  state,  under  her 
authority  j  and,  when  votes  fail,  he  fights  for  the  same  object,  under 
the  same  authority,  against  all  foes,  whether  external  or  internal. 
Voting  and  fighting  are  correlatives,  and  both  are  done  in  obedience 
to  the  instinct  of  self-preservation  —  the  first  law  of  nature  —  the 
same  instinct  that  prompted  men  to  form  the  societies  called  states, 
and  these  to  form  the  federation  called  "the  United  States."  The 
only  possible  original  and  ultimate  judgment  and  will  to  decide  when 
the  occasion  for  fighting  or  voting  arises,  and  to  direct  the  mode  and 
means,  are  those  of  the  state.  And  as  the  federal  agents  are  not  only 
citizens  and  subjects  of  the  state,  but  are  chosen  for  her,  by  her 
electors,  to  do  her  will,  it  is  obviously  in  the  nature  of  rebellion  and 
treason,  for  them  to  oppose  her  will  by  force.  If  they  do  so,  her 
voters  must  become  her  soldiers,  to  fight  such  perfidious  agents ;  and 
defending  her  is  defending  themselves,  and  vindicating  their  own 
collective  will,  as  well  as  preserving  republican  liberty,  or  the  right 
of  the  people  to  organize  themselves,  and  govern  themselves.  The 
Southern  patriots  acted  in  conformity  with  these  principles,  and  hence 
were  not  rebels  and  traitors. 

The  Federal  Compact  vindicates  them.  —  In  a  striking  manner 
does  the  federal  compact  support  these  views,  for  it  shows  that  the 
only  parties  to,  and  the  only  actors  under  it,  are  the  states ;  and  that 
these  are  the  only  sources  of  elective  power  —  all  the  officials  being 
citizens  of  states,  elected  or  appointed  by  and  for  them.  Indeed, 
these  officials  belong  to  states  as  much  as  ever  slaves  did  to  their 
owners ;  and  their  power  or  discretion  is  only  that  of  their  masters, 
and  is  strictly  confined  to  the  delegations  in  the  compact.  And  the 
said  compact  acknowledges  and  declares  that  every  citizen  is  a  citizen  of 


30  A  GENERAL  VIEW. 

a  state,  or,  in  other  words,  that  he  is  "  bone  of  her  bone  and  flesh  of  her 
flesh ; "  owes  allegiance  to  her  alone ;  and  is  compellable  to  obey  the 
federal  agency  solely  by  virtue  of  her  command.  Article  IV.,  §  2, 
shows  all  citizens  to  be  citizens  of  states ;  and  Article  II.,  §  1,  shows 
that  the  President  must  be  chosen  by  the  states,  while  the  delegations 
of  states  that  compose  Congress  are  elected  and  empowered  solely  by 
them.  So  that,  in  collegia,  these  officials,  and  the  citizens  and  sub- 
jects of  the  states  which  they  appoint  to  federal  offices,  constitute 
"the  government  of  [i.  e.  belonging  to]  the  United  States,"  or,  in 
other  words,  the  agency  of  self-government  of  the  states  which  are 
united.  The  simple  phrases  of  the  constitution,  "the  united  states," 
and  "the  states  in  this  union,"  should  end  controversy,  as  the  states 
were  pre-existent,  and  associated  themselves  to  form  the  union.  It  is 
obvious,  then,  that  the  ultimate  authority  for  the  citizens  to  obey  is 
the  state,  and  not  the  government. 

The  treason-clause  itself  supports  this  view.  It  declares  that  "  trea- 
son against  The  United  States  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving  them  aid  and  comfort." 
The  objects  of  this  treason,  then,  are  (not  "  the  government,"  "  the 
nation,"  or  "  the  people,"  but)  the  states,  or,  to  use  Madison's  phrase, 
"the  people  as  composing  thirteen  sovereignties,"  each  of  these  sove- 
reignties having  its  own  subjects,  which  owe  allegiance  to  it,  and  are 
liable  to  the  penalties  of  treason  for  violating  that  allegiance.  And 
"the  government"  itself,  created  as  it  is  by,  and  subject  to,  the  su- 
preme law  of  the  said  states,  may,  by  such  "levying  war  against 
them"  commit  treason  against  "them"  Nay,  more,  it  might  with 
"their"  army  and  navy  become  "their  enemies,"  and  subjugate 
"  them  "  one  after  another  to  its  central  despotism,  as  it  has  already 
done  to  ten  of  "them"  and  as  it  may,  on  new  pretexts,  do  to  the  rest. 
For  a  citizen  to  fight  against  his  state  is  treason,  while  his  fighting 
against  "  the  government,"  by  command  of  his  state,  is  patriotic  duty  ! 

Strong  Corroborations.  —  The  guilty  perverters,  and  those  who 
are  to  profit  by  centralization,  hate  these  truths ;  but  it  will  be 
seen  that  the  constitution,  the  records  of  the  country,  and  the  con- 
temporaneous exposition  of  the  fathers,  are  univocal  in  support  of 
them.  It  is  well  here  to  give  a  slight  foretaste.  Madison  wrote  in 
Article  46  of  the  Federalist :  "  The  federal  and  state  governments  are, 
in  fact,  but  different  agents  and  trustees  of  the  people.  .  .  .  The 
ultimate  authority,  wherever  the  derivative  may  be  found,  resides  in 
the  people  alone."  In  the  Virginia  Convention  he  explained  that 
"  the  people  "  meant  "  the  people,  as  composing  thirteen  sovereignties." 
In  Article  40  of  the  Federalist  he  said :  "  The  states  are  regarded 
as  distinct  and  independent  sovereignties  ...  by  the  constitution 


REBELLION  OR  NOT?  31 

proposed."  Nay,  more,  every  idea  herein  expressed  is  to  be  found  in 
the  federal  history,  and  the  present  constitutions,  of  New  York  and 
Massachusetts,  as  will  hereafter  be  fully  shown.  These  constitutions 
describe  the  citizen  as  a  "member"  and  "citizen"  of  the  state  —  the 
latter  calling  him  a  "  subject  of  this  state ; "  and  they  declare  sove- 
reignty," eo  nomine,  to  be  in  the  states  respectively,  and  no  "  powers  " 
to  be  out  of  them  except  entrusted  ones;  and  their  history  is  full  of 
proofs  that  the  federal  government  has  no  shadow  of  right  to  exist 
and  hold  jurisdiction  within  their  borders,  except  by  and  under  their 
sovereign  will. 

As  the  confederates  acted  in  precise  accordance  with  these  principles, 
it  is  absurd  to  call  them  re*bels  or  traitors.  They,  as  individuals, 
obeyed  themselves  as  states.  This  is  self-government.  It  is  republi- 
can freedom.  Our  states,  then,  which  were  the  first  dwelling-places 
of  Liberty,  are  her  last  retreats,  her  final  citadels,  in  her  contests  with 
power  ! 

Coercion  of  States  is  War  against  them.  —  By  all  the  fathers, 
as  will  be  hereafter  shown,  coercion  of  states  by  the  government,  was 
considered  to  be  war.  Those  waging  this,  no  matter  what  they  are 
called,  must  be  "  enemies ; "  and  if  the  citizens  and  subjects  of  the 
states  attacked,  wage  this  war,  or  give  "  aid  and  comfort "  to  others 
who  do  so,  they  commit  treason.  Not  only  was  no  provision  made 
for  the  federal  authorities  to  coerce  the  states  (their  only  coercive  au- 
thority affecting  citizens,  and  being  enforced  by  courts),  but  when 
the  thoughtless  proposition  was  made,  in  the  federal  convention,  to 
give  the  general  government  this  coercive  power,  it  was  unanimously 
rejected,  Madison  and  Hamilton  stigmatizing  it  as  "visionary  and  fal- 
lacious," and  "  the  maddest  project  ever  devised."  They  also  declared 
that  it  was  war,  and  was  entirely  incompatible  with  the  plan  of  union, 
which  was  a  voluntary  association  of  states,  the  sole  purpose  of  which 
was  "  the  security  of  the  rights  and  the  advancement  of  the  interests  " 
of  the  associates.  If  the  people,  as  states,  possess  original  and  abso- 
lute power,  while  the  federal  government  has  purely  derivative,  and 
necessarily  subordinate  authority,  coercion  of  states  by  the  said  gov- 
ernment is  not  only  unconstitutional,  but,  as  the  fathers  declared,  it 
is  war  against  them,  and  is,  in  its  very  nature,  treasonable.  And 
the  citizens  "  levying  "  the  "  war,"  or  giving  aid  and  comfort  to  the 
enemy,  —  if  they  are  citizens  of  the  state  which  is  the  object  of  the 
"  war,"  —  directly  violate  their  allegiance,  and  commit  treason. 

The  Nation  is  States  —  Governments  are  Creatures.  —  There 
is  no  doubt  that  all  the  architects  of  American  constitutional  liberty, 
and  all  the  master  workmen  who  built  the  temple,  all  the  presidents 
who  left  any  record  down  to  1860,  with,  perhaps  a  single  exception, 


32  A  GENERAL   VIEW. 

and  all  the  respectable  statesmen,  except  a  few  who  are  more  parti- 
sans and  advocates  than  statesmen,  regarded  the  union  as  a  federa- 
tion of  self-governing  sovereignties. 

These  sovereignties  ratified  the  constitutional  compact  separately, 
just  as  European  sovereignties  would  ratify  a  treaty.  They  thereby 
created  the  federal  government,  and  "  delegated  "  to  it  the  only  power 
it  ever  held,  or  could  hold. 

All  ideas  of  state  subordination  are  alike  false,  mischievous,  and 
absurd.  If  thirteen  sovereignties  of  Europe,  in  order  to  join  their 
strength -in  defence,  to  lessen  the  trouble  and  cost  of  government, 
and  to  lighten  the  people's  taxes  and  other  burdens,  were  to  unite 
themselves,  no  one  would  contend  that  the  common  agency  —  that 
is,  the  congress  of  commissioners  and  ambassadors  charged  with  the 
duties  of  such  general  government  —  could  by  any  possibility  become 
sovereign  over  the  said  sovereigns.  Equally  false  and  absurd  it  is  to 
say  that  the  government  of  our  country  can  have  sovereign  or  con- 
trolling authority  over  the  states  that  created  it.  Governmental  sove- 
reignty in  a  republic  is  a  solecism.  That  cannot  be  sovereign  which 
is  subject  to  control  and  abolition.  The  government  provided  for  in, 
is  necessarily  under  and  controlled  by,  the  constitution.  And  this 
instrument  is  necessarily  subject  to  the  commonwealths  of  people 
that  made  and  ordained  it  as  their  law.  It  follows,  of  course,  that 
the  states  are  sovereign,  and  the  government  is  their  subject.  This 
relation  having  been  once  established,  only  treasonable  revolution  can 
change  it. 

The  United  States  taught  Davis  and  Lee  Secession.  —  Andrew 
Johnson,  Salmon  P.  Chase,  Jefferson  Davis,  and  Robert  Lee  were  young 
men  acquiring  their  political  knowledge  about  the  same  time.  They 
were  taught  that  the  states  were  (to  use  Hamilton's  phrase)  the  "essen- 
tial component  parts  "  of  the  federal  system ;  or,  in  other  words,  that 
there  was  no  nation,  but  states ;  that  they,  as  their  parents  had  been, 
were  citizens  of  states,  and  owed  allegiance  thereto ;  and  that  they 
were  entirely  subject  to  the  will  and  coercive  authority  of  their  re- 
spective states.  Moreover,  they  knew  from  history  that  the  federal 
convention,  at  the  instance  of  Madison  and  Hamilton,  excluded  the 
power  to  coerce  states  from  the  federal  compact,  as  an  absurdity. 
And  furthermore,  the  federal  system  had  been  in  operation  for  about 
forty  years,  and  yet  state  sovereignty,  and  the  included  and  essential 
right  of  secession,  were  taken  for  granted.  The  only  books  in  which 
they  could  study  constitutional  law  laid  down  these  doctrines  as 
unquestionable.  Said  ST.  GEORGE  TUCKER,  in  his  Commentaries, 
1802  :  "Each  is  still  a  perfect  state,  still  sovereign,  still  independent, 
and  still  capable,  should  the  occasion  require,  to  resume  the  exercise 


REBELLION  OR  NOT?  33 

of  its  functions  as  such,  in  the  most  unlimited  extent."  Said  WILLIAM 
RAWLB,  in  his  Commentaries,  1829:  "The  states,  then,  may  wholly 
withdraw  from  the  union ;  but  while  they  continue,  they  must  retain 
the  character  of  representative  republics.  The  secession  of  a  state 
from  the  union  depends  on  the  will  of  the  people  of  such  state.  The 
people  alone,  as  we  have  already  seen,  hold  the  power  to  alter  their 
constitution."  The  above  authors  —  one  from  the  North  and  the 
other  from  the  South  —  were  among  the  ablest  of  the  early  American 
jurists,  and  their  statement  was  taken  as  truth.  It  was  an  essential 
and  indisputable  truth,  and  not  a  mere  opinion.  And  it  will  be  shown 
fully  hereafter  that  this  right  of  secession  was  considered  by  the 
fathers  unquestionable  —  too  much  so,  indeed,  for  discussion.  The 
above  works  were  text-books  at  West  Point  when  Davis  and  Lee 
were  cadets  there.  Was  it  not  rather  inconsistent  for  Uncle  Samuel 
to  think  of  hanging  his  pupils  for  practising  the  precepts  he  specially 
taught  them  1 1 

Thus  it  was  that  these  four  distinguished  personages  were  educated 
and  impressed ;  and  it  is  probable  that  the  views  of  all  of  them  re- 
mained unchanged  during  thirty  years  of  their  manhood  till  1860  — 
the  great  epoch  of  change.  Before  that  they  would  have  deemed 
it  a  monstrous  idea  that  the  federal  government  could  lawfully  hang 
them  because  the  state  irresistibly  carried  them  out  of  the  union, 
and  compelled  them  to  defend  her,  while,  at  the  same  time,  the  state 
could  have  hung  them  if  they  had  opposed  her ;  and  they  could  but 
believe  that  when  the  state  repealed  its  ordinance  of  "  ratification," 
it  was  no  longer  lawful  for  the  citizens  to  obey  the  federal  authorities, 
as  ratification  was  the  only  cause  of  federal  jurisdiction,  and  as  the 
power  of  repeal  was,  by  all  law  and  common  sense,  exactly  commen- 
surate with  that  of  enactment.  Would  it  not  have  sounded  like  a 
horrible  romance  for  two  of  these  men,  after  passing  to  the  evening  of 
life,  in  ardent  devotion  to  these  principles,  to  have  had  the  power,  and 
to  have  exercised  it,  of  hanging  the  other  two  —  also  become  old,  and 
among  the  most  distinguished  men  in  the  world  —  for  honorable  con- 
sistency to  these  same  principles,  and  for  obeying  and  defending  their 
states,  where  were  concentrated  all  the  objects  of  a  true  heart's  devo- 
tion—  those  objects  which  noble  and  brave  souls  are  wont  to  pre- 
fer to  all  the  rest  of  earth,  and  to  defend  even  to  the  last  drop  of 
blood  —  neighbors,  friends,  kindred,  birthplace,  hearthstones  and  al- 
tars, and  the  "  green  graves  of  their  sires  "  1 

1  They  probably  were  at  West  Point  in  the  administration  of  John  Quincy  Adams, 
who,  as  late  as  1839,  essayed  to  teach  the  whole  American  people  that  "  the  people  of 
each  state  .  .  .  have  a  right  to  secede  from  the  confederated  union."  These  are  his 
very  words ! 

3 


CHAPTEE  VI. 
REBELLION  OR  NOT?     (CONTINUED.) 

PATRIOTISM    IS    LOVE   OF    ONE'S    STATE. 

r  I  "'HE  commonwealth,  the  cherishing  mother,  was  belligerently  at- 
JL  tacked  for  exercising  the  same  political  will  in  withdrawing 
from,  that  she  had  done  in  adopting,  the  constitution,  —  attacked,  too, 
by  the  subjects  of  herself  and  her  sister  sovereigns,  who  were  tempo- 
rarily entrusted  with  federal  power,  and  who  had  perverted  the  gov- 
ernment from  its  uses  to  do  so.  Then  went  forth  her  summons  to  all 
her  sons  to  defend  her  with  arms.  "  Breathes  there  a  man  with  soul 
so  dead  "  that  he  will  not,  in  such  a  crisis,  stand  by  and  defend  his 
family,  neighbors,  fellow-citizens,  and  his  state,  against  all  or  any  part 
of  the  outside  world  1  He  who  is  not  for  his  state  is  against  her,  and 
in  such  an  emergency  he  must  obey  her  call,  unless,  like  a  recreant, 
he  fly  abroad,  or,  like  a  traitor,  go  outside,  and  turn  the  weapons  of 
war  against  her  breast,  against  his  own  kindred,  against  even  the 
mother  that  bore  him !  As  for  me,  if  there  must  be  conflict,  I  would 
rather  sink  with  the  commonwealth  containing  these  dearest  treasures 
of  earth,  than  swim  with  the  concentrated  excellence  of  a  thousand 
unions !  Let  me,  for  them,  rather  be  broken  on  the  wheel,  than  live 
for  one  moment  with  the  infamy  of  deserting  them  in  the  hour  of  their 
need.  I  merely  mention,  but  do  not  dishonor  myself  by  contending 
for,  so  sacred  a  sentiment.  Of  every  good  man  and  true  statesman,  it 
is  the  very  soul  of  his  heart !  On  questions  of  patriotism  and  honor, 
"  reasoning  is  sometimes  useless,  and  worse.  It  is  too  cold,  and  its 
processes  are  too  slow.  I  feel  the  decision  in  my  pulse.  If  it  throws 
no  light  on  the  brain,  it  kindles  a  fire  at  the  heart !  "  [Fisher  Ames 
on  the  Jay  Treaty,  1796.] 

The  Patriotism  the  Fathers  felt  and  taught.  —  The  states,  as  sove- 
reign political  bodies,  existed  before  the  constitution  did.  Each  was 
made  up  of  its  members  or  citizens,  these  being  bound  in  the  social 
compact,  as  individuals,  to  obey  the  law  of  all.  To  protect  themselves 
and  preserve  their  blessings,  was  the  object  of  the  people  in  forming 
such  state.  Necessarily  all  the  heart's  treasures  are  there,  and  these 


REBELLION  OR  NOT?     (CONTINUED.)  35 

are  the  "  blessings  of  liberty,"  of  which  the  federal  preamble  speaks. 
It  was  solely  to  increase  the  security  of  the  same  people  and  their 
"  blessings  "  that  the  federal  system  was  formed.  The  state,  then,  is 
the  sole  object  of  patriotic  devotion, — of  the  heart's  allegiance,  while 
the  general  government  is  simply  entitled  to  obedience,  because  the 
state  commands  it.  And  honor  here  concurs  with  patriotism ;  for, 
while  the  latter  is  devotion  to  one's  country,  and  to  the  society  that 
involves  his  membership  and  all  his  blessings,  the  former  prompts  him 
to  comply  with  the  social  compact,  and  obey  that  society's  commands, 
and  to  defend  her.  Moreover,  self-protection  and  duty  to  neighbors 
and  fellow-citizens  are  accomplished  by  such  obedience  and  defence. 

On  this  sacred  subject  listen  to  the  voice  of  the  fathers.  SAMUEL 
ADAMS,  of  Massachusetts,  called  "  the  sovereign  authority  of  the  state," 
"  the  palladium  of  the  private  and  personal  rights  of  the  citizens." 
[IIL  Life  of  Samuel  Adams,  273.]  JOHN  DICKINSON,  of  Delaware, 
spoke  of  "  the  independent  sovereignty  of  the  respective  states  "  as 
"  that  jnstly  darling  object  of  American  affections,"  to  which  the 
federal  agents  are  responsible.  [II.  Political  Writings  of  Dickinson, 
99.]  OLIVER  ELLSWORTH,  of  Connecticut,  looked  "  for  the  preservation 
of  his  rights  to  the  state  governments."  "  His  happiness  depended  on 
their  existence,  as  much  as  did  a  new-born  infant  on  its  mother  for 
nourishment."  [I.  Ell.  Deb.  474,  v.  Ibid.  268.]  Said  ALEXANDER  HAM- 
ILTON, of  New  York,  who  considered  "  the  states  "  to  be  the  "  essential 
component  parts  of  the  new  system  : "  "  We  love  oar  families  more 
than  our  neighbors  ;  we  love  our  neighbors  more  than  our  countrymen 
in  general.  The  human  affections,  like  the  solar  heat,  lose  their  in- 
tensity as  they  depart  from  the  centre,  and  become  languid  in  propor- 
tion to  the  expansion  of  the  circle  on  which  they  act.  On  these 
principles,  the  attachment  of  the  individual  will  be  first  and  forever 
secured  by  the  state  governments."  [II.  Ell.  Deb.  354.]  Many  kindred 
expressions  of  the  fathers  might  be  here  given,  but,  I  presume,  these 
will  suffice.  Not  an  opposing  line  can  be  found  in  all  our  history. 

The  letter  containing  the  sentiment  of  Dickinson,  met  the  express 
and  emphatic  approval  of  the  great  and  good  Washington.  Indeed, 
none  dissented  in  those  earlier  and  better  days.  All  felt  the  holy 
flame.  But  since  then  politicians,  perverters  of  constitutions,  cor- 
rupters  of  public  sentiment,  and  violators  alike  of  sacred  faith  and 
sound  principle  have  compelled  the  patriots  and  statesmen  of  the 
country  to  retire,  and  have,  for  selfish  and  partisan  purposes,  intro- 
duced a  sort  of  idolatry,  —  a  false  worship,  the  poor  pagans  of  which, 
in  their  fanaticism  or  moral  obliquity,  ignore  the  dear  objects  and 
institutions  of  home,  and  —  like  the  pilgrims  to  Mecca  or  Lassa  — 
wander  off,  and  bow  the  knee,  and  submit  the  neck  to  their  idol,  which, 


36  A  GENERAL   VIEW. 

in  this  case,  is  a  mere  political  arrangement,  — an  agency  or  commis- 
sion, that  is  only  entitled  to  regard  and  devotion  just  so  far  as  it  affords 
the  designed  safety  to  the  aforesaid  commonwealth  and  its  associates, 
and  all  the  rights  which  they  involve,  and  gives  to  citizens  a  sense  of 
present  justice,  and  a  satisfactory  prospect  for  their  future  safety  and 
happiness. 

Davis  and  Lee  no  Traitors.  —  Such  was  the  teaching  of  the  fathers 
as  to  patriotism  and  its  object,  and  thus  thought  and  acted  Davis, 
Lee,  and  every  other  patriot  who  defended  his  state  against  federal 
attack.  Each  one  knew  of  the  old  ordinance  or  law  of  his  state, 
"  ratifying  "  her  federal  compact,  and  commanding  him  to  obey  her 
federal  government,  and  he  had  long  obeyed  it ;  but  a  later  act  re- 
pealed the  former,  and  commanded  him  not  to  obey  the  said  govern- 
ment ;  and  he  knew  the  power  to  repeal  to  be  precisely  commensurate 
with  that  to  enact.  Why  should  the  citizen  heed  and  obey  the  state's 
command,  contained  in  her  ordinance  of  ratification,  and  disobey  her 
countermand]  And  how  could  there  be  rebellion  and  treason  in 
obeying  the  authority  which  had  habitually  commanded  him,  and 
which  he  had  habitually  obeyed,  —the  authority  of  the  self-governing 
body  he  belonged  to  1 

Again,  it  was  not  alleged  that  Davis,  Lee,  or  any  other  confederate 
chief,  induced  the  states  to  secede,  or  that  any  of  them  seceded  indi- 
vidually, and  of  their  own  motion,  or,  indeed,  that  they  acted  in  the 
premises  at  all  before  secession  had  become  un  fait  accompli,  and  hos- 
tilities had  been  commenced.  Hence,  the  will,  the  act,  and  the  crimi- 
nal intent,  which  must  concur  to  make  up  the  crime,  could  not  be 
proved  against  them. 

Moreover,  the  only  semblance  of  individual  responsibility  for  these 
things,  must  have  been  in  the  members  of  the  convention,  by  virtue 
of  whose  act  all  citizens  (including  Davis  and  Lee)  were  alienated 
from  the  union,  made  belligerent,  and  forced  as  well  as  commissioned, 
to  fight  the  federal  government.  Ko  one  hinted  at  prosecuting 
them. 

Absurd  Views  of  Sovereignty.  —  These  conventions,  endowed 
with  plenary  authority  by  the  states,  were  unlimited  in  their  power ; 
had  actual  control  of  all  citizens  ;  made  it  treason  to  oppose  seces- 
sion; and  were  able,  ready,  and  willing  to  hang  too  troublesome 
opponents.  Delightful  country  to  live  in,  where  one  authority  can 
hang  you  for  doing  what  another  authority  can  hang  you  for  not 
doing  ! 

Such  constitutional  law  is  that  of  Bedlamites,  and  to  enforce  it 
would  soon  depopulate  the  country.  Yet,  it  is  a  legitimate  sequence 
of  the  doctrines  of  the  Massachusetts  school,  which  have  produced  all 


REBELLION  OR  NOT?     (CONTINUED.)  37 

our  confused  notions  and  loose  talk  about  "  delegated  sovereignty ; " 
"  divided  sovereignty  ;  "  "  two  sovereignties ;  "  "  federal  sovereignty 
and  state  sovereignty,  each  supreme  in  its  own  sphere ; "  "  the  sove- 
reign powers  distributed  between  the  state  and  the  general  govern- 
ments ; "  "  the  absolute  supremacy  of  the  government,"  etc.,  etc. 
Never  has  there  been,  in  the  land  now  called  "  the  United  States  of 
America,"  a  sovereign  government,  or  a  sovereign  power  in  govern- 
ment, since  the  British  monarchy  was  displaced,  in  each  and  every 
colony,  by  a  republic  ;  for  ever  since  that,  the  sovereignty  has  neces- 
sarily been  in  the  people  ;  and  it  is  now  the  fundamental  principle,  that 
the  absolute  right  is  inherent  in  the  people,  of  instituting,  altering,  or 
abolishing  government  at  will.  There  can  be  no  republic,  unless  the 
people  continue  to  have  sovereignty,  or  the  right  of  self-government. 
And  as  sovereignty  is  only  predicable  of  organization,  and  as  the  peo- 
ple were  never  organized  except  in  states,  it  is  certain  that  the  sove- 
reignty of  our  country  must  ever  have  dwelt  in  the  said  bodies  of 
people,  —  each  for  herself  being  sovereign  ;  and  that  the  federal  and 
state  governments  are  both,  as  Madison  declared,  the  agencies  of  this 
sovereignty,  and  necessarily  subordinate  to  it.  "The  sovereignty  of 
government"  says  Daniel  Webster,  "  is  an  idea  belonging  to  the  other 
side  of  the  Atlantic.  No  such  thing  is  known  in  North  America." 
[Speech  of  1833.] 

States  alone  were  Responsible  for  Secession  and  War.  —  How 
absurd  it  is  to  hold  individual  citizens  responsible  for  secession,  they 
having  no  more  volition  or  power  to  stop  the  state  than  the  Man  in 
the  Moon  has  to  stop  that  orb !  In  Virginia,  for  instance,  150,000 
voters,  including  General  Lee,  sent  delegates  to  a  convention,  which 
duly  deliberated,  and  ultimately  voted  the  state  out  of  the  union.  As 
a  citizen,  he  was  compelled  to  obey,  and  finally  defend  the  state.  Op- 
position, after  the  convention  had  acted,  would  have  been  punishable 
enmity  to  his  commonwealth,  she  having  possession  of  him  and  his 
family  and  estate,  and  the  fullest  possible  power  of  punishment.  It 
must  strike  every  one,  then,  that  states  having  seceded  as  bodies,  and 
ipso  facto  carried  all  the  citizens  out  of  the  union,  Davis,  Lee,  and 
others,  cannot  be  held  responsible  as  individuals  for  secession,  or  for  the 
war  which  the  said  states  waged  against  the  federal  government. 
Regardless  of  the  condition,  position,  wishes,  or  acts  of  any  citizen, 
the  state  took  the  deliberate  and  solemn  step  of  seceding  from  the 
union,  and  the  further  step  of  federating  with  other  states,  which  had 
seceded  for  the  same  causes  and  about  the  same  time.  The  important 
act  of  secession  was  done  in  precisely  the  form,  and  with  the  solemni- 
ties observed  by  the  original  states,  in  their  corporate  act" of  "assent- 
ing to  "  and  "  ratifying  "  the  instrument  of  union  called  the  federal 


38  A  GENERAL  VIEW. 

constitution,  —  that  is  to  say,  a  convention  of  each  state,  elected  and 
empowered  by  the  sovereign  people  thereof,  after  due  deliberation, 
declared  the  will  of  that  political  entity  or  "  moral  person "  called 
"the  state"  to  be  —  withdrawal  of  the  consent  and  the  "delegated  " 
authority  of  said  state  from  the  federal  constitution.  This  is  seces- 
sion. Now,  this  commonwealth,  which  had  actual  possession  of  and 
jurisdiction  over  her  members,  and  which  no  citizen  could  escape  from 
without  running  away  from  home,  estate,  family,  and  everything  dear, 
and  becoming  an  outlaw  or  an  emigrant,  —  this  great  repository 
of  everything  that  mortal  heart-strings  entwine  themselves  around, 
having,  of  its  own  motion,  withdrawn  from  the  federation,  Davis, 
Lee,  or  any  other  given  citizen,  was  deported,  as  it  were,  from  the 
union,  having  as  little  practical  volition  in  the  matter  as  an  infant  of 
emigrating  parents.  Nay,  more,  the  state,  with  her  hand  actually  upon 
him,  exacted  his  submission  and  obedience  under  penalties  which  could 
have  been  enforced.  And  every  one  knows  that  such  penalties  did 
exist,  and  were  enforced,  and  that  malcontents  were  persecuted  and 
driven  out  of  their  respective  states.  Whether  a  state,  acting  thus,  did 
right  or  wrong,  is  not  now  the  question  ;  citizens  had  no  choice.  And, 
furthermore,  as  to  Mr.  Davis,  he  did  not  vote  for  secession,  and  did 
not  even  favor  the  policy,  though  he  had  no  doubt  as  to  the  right.  1 
If  General  Lee  voted  at  all,  he  voted  against  secession. 

And  States  alone  were  Punishable.  —  He  is  dull  that  does  not 
perceive,  and  uncandid  that  does  not  acknowledge,  that,  as  it  was  the 
people  as  a  commonwealth  that  seceded,  and  committed  the  acts  of 
hostility  complained  of,  the  said  political  body  was  the  proper  subject 

1  Hon.  0.  R.  Singleton,  who  was  for  many  years  an  influential  member  of  the  Fed- 
eral Congress  from  Mississippi,  and  who  was  subsequently  in  the  Confederate  Congress, 
wrote  to  the  author  substantially  as  follows:  "Near  the  close  of  1860,  a  short  time 
before  South  Carolina  seceded,  a  conference  of  our  delegation  in  Congress  was  held  in 
Jackson,  Miss.,  at  the  instance  of  Governor  Pettus.  The  main  question  propounded  for 
discussion  was,  whether,  in  case  South  Carolina  seceded,  Mississippi  should  do  likewise, 
or  wait  and  endeavor  to  secure  the  co-operation  of  the  Southern  States.  Senator  Jeffer- 
son Davis  declared  emphatically  against  separate  state  action,  arguing  that  secession  was 
an  unquestionable  right  belonging  to  every  state,  but  that  it  was  not  to  be  resorted  to, 
until  every  other  peaceful  means  of  securing  redress  had  been  exhausted.  He  gave 
cogent  reasons  why  Mississippi  should  not  secede  at  that  time,  and  expressed  the  hope 
that  by  some  means  the  necessity  of  her  seceding  at  all  might  be  averted.  His  views 
were  such  that  I,  with  others,  thought  him  altogether  behind  the  people.  In  conclusion, 
he  said  his  allegiance  was  due  to  his  state,  and  that  her  choice,  as  Avell  as  her  fate,  should 
be  his." 

A  private  letter  from  Mr.  Davis  himself  to  the  author  contains  the  following :  "  A 
dissolution  of  the  Union  was  with  me  always  the  last  resort,"  "  a  very  great,  though  not 
the  greatest,  of  evils."  He  considered  that  a  state  had  necessarily  an  unlimited  right  of 
self-preservation,  and  could  but  be  the  final  judge  of  the  means; "and  that  the  right  of 
secession  was  one  of  the  absolute  rights  involved  in  the  nature  of  sovereignty,  —  a  right 
inherent,  essential,  and  inalienable. 


REBELLION  OR  NOT?    (CONTINUED.)  39 

of  punishment,  if  this  was  due  ;  and  that  such  body  must  be  reached 
by  the  ultima  ratio,  or  not  at  all ;  for,  as  was  said  by  Burke,  "  you 
cannot  frame  a  bill  of  indictment  against  a  people."  The  will,  inten- 
tion, and  act,  the  ingredients  of  the  offence  charged,  having  been  solely 
those  of  the  state,  it  is  common  sense,  and  requires  no  argument,  that 
the  state  alone  is  punishable.  That  the  states  fought,  as  such,  against 
coercion,  is  a  fact  which  the  federal  agency  could  no  more  prevent  or 
undo,  than  it  could  change  the  principles  of  law  applicable  to  such  facts. 
And  those  judges  —  some  of  them  "pigmies  perched  on  Alps" 
whose  wishes  upon  these  subjects  father  their  thoughts,  simply  achieve 
falsehood,  and  attract  derision  by  attempting  to  decree  the  non-exist- 
ence of  facts  which  even  Deity  could  not  destroy.  It  is  simple  and 
palpable  untruth  to  say  that  there  was  no  secession  de  facto,  —  no  state 
fighting  de  facto  against  the  federal  agency,  —  no  confederate  govern- 
ment de  facto.  They  might  as  well  say  there  was  no  war  de  facto. 

The  Atonement  was  Complete.  —  And,  supposing  the  states  to 
have  been  guilty,  were  they  not  punished  enough  1  Multitudes  of 
their  children  were  slain,  and  their  whole  people  long  mourned  in 
bitter  anguish.  They  were  reduced  to  unmitigated  ruin  and  wretch- 
edness. And,  worse  than  all,  they  lost  completely  their  freedom  of 
will,  and  were  degraded  and  humiliated  as  were  never  states  before. 
Russian  serfs  had  more  liberty  and  protection.  And,  monstrous  as  it 
may  seem,  "the  iron  entered  the  soul"  of  these  stricken  and  sorrow- 
ing commonwealths  insufficiently  to  sate  the  devilishness  of  some  of 
their  native  sons ;  for  these  have  ever  since  traitorously  striven  with 
enemies  to  subjugate  the  said  republics,  and  put  their  proud  hearts 
permanently  under  the  iron  rule  of  ignorance  and  brutality ! 

The  Jus  Gentium  protected  Confederates.  —  The  belligerent 
character  of  the  Southern  States,  recognized  as  it  was  by  foreign 
nations,  and  by  the  federal  government,  was,  under  the  jus  gentium, 
an  ample  shield  to  their  citizens,  no  matter  whether  the  recent  con- 
flict was  a  "  civil  war  "  or  a  "  war  between  the  states."  Says  VATTEL 
[pp.  425-7] :  "  A  civil  war  breaks  the  bonds  of  society  and  govern- 
ment, or  at  least  suspends  their  force  and  effect ;  it  produces  in  the 
nation  two  independent  parties,  who  consider  each  other  as  enemies, 
and  acknowledge  no  common  judge.  .  .  .  They  stand,  therefore,  in 
precisely  the  same  predicament  as  two  nations  who  engage  in  a  con- 
test, and,  being  unable  to  come  to  an  agreement,  have  recourse  to 
arms."  ..."  The  obligation  to  observe  the  common  laws  of  war 
toward  each  other  is,  therefore,  absolute, — indispensably  binding  on 
both  parties."  And  as  to  Davis,  Lee,  and  the  officers  and  soldiers  of 
such  belligerent,  their  status  of  prisoners  of  war  precluded  all  ques- 
tions of  civil  punishment.  Indeed,  by  hesitating  on  such  a  subject, 


40  A  GENERAL  VIEW. 

the  federal  agents  courted  the  world's  contempt.  And  those  who 
persisted  in  prosecuting  Davis,  either  knew  not  the  law  of  the  case, 
or  knowingly  conspired  to  effect  an  unlawful  purpose,  —  evincing  that 
"  malice  prepense  "  which  makes  homicide  murder. 

The  Legitimate  Conclusions.  —  It  is  obvious,  then,  that  the  con- 
federates observed  the  obligation  of  the  social  compact,  —  the  highest 
of  all  political  obligations  in  a  republic,  —  and  were  true  to  their  alle- 
giance, and  to  the  requirements  of  patriotism,  as  well  as  to  the  instinct 
of  self-preservation ;  and  that,  if  in  the  history  of  the  last  decade  of 
years,  any  rebels  and  traitors  appear,  they  are  those  who,  being  citizens 
and  subjects  of  states,  used  federal  force  in  "  levying  war  against 
them,"  or  adhered  to  their  enemies,  "  giving  them  aid  and  comfort." 
Those  who  wage  war  against  states  must  be  "  their  enemies  ;  "  and  the 
citizens  of  states,  who  assist  such  enemies,  must  be  TRAITORS  ! 


CHAPTEE  VII. 

THE  ARCHITECTS'  IDEA  OF  THE  EDIFICE. 

WAS  our  federal  system  several  distinct  and  sovereign  political 
bodies,  self-united,  and  consequently  superior  to  the  voluntary 
bonds;  or  were  these  pre-existent  bodies  reduced  from  states  to 
provinces,  and  consolidated  into  one  commonwealth  or  nation  1  This 
is  a  simple  inquiry  of  fact,  as  free  from  intrinsic  difficulty  as  is  such 
question  concerning  thirteen  complete  buildings,  which  the  thirteen 
separate  proprietors  have  united  under  a  single  all-sheltering  roof,  and 
provided  with  common  corridors,  walks,  kitchen,  back-yard,  stable, 
pig-pen,  hen-roost,  and  garden ;  or  concerning  thirteen  pre-existent 
colleges,  self-united  in  a  university ;  or  concerning  thirteen  neighbor- 
ing proprietors  who  establish  a  common  agency  for  their  common  con- 
cerns ;  or  concerning  thirteen  associated  commonwealths,  whose  "  U. 
S."  means  either  '*  united  sisters  "  or  "  united  states."  In  all  such 
cases,  the  individuals  are  facts  or  entities,  unchanged  by  association, 
and  the  thing  formed  by  such  association  is  technically  named  and 
described  in  legal  and  political  terminology. 

Now,  if  Inigo  Jones,  Sir  Christopher  Wren,  Brunei,  Michael  Angelo, 
or  Cheops  had  contemporaneously  spoken  or  written  of  the  structure 
he  was  building,  that  it  was  a  palace,  a  church,  a  pyramid,  or  a  tun- 
nel, it  would  be  laughable,  if  some  one  —  whether  architect  or  not  — 
were  to  say,  in  after  years,  "  No,  it  is  a  wharf,"  "  an  obelisk,"  "  a 
bridge,"  or  "a  steamship;"  and  if  the  latter  were  to  argue  on  it,  he 
would  be  derided,  especially  as  the  matter  is  one  of  fact,  and  not  of 
interpretation,  —  of  technical  description,  and  not  of  argument.  The 
object  of  this  chapter  is  to  present  the  positive  and  unambiguous 
statements  of  the  great  architects  of  the  federal  edifice,  in  direct  con- 
trast with  the  utterances  of  Dane,  Story,  and  Webster,  and  their  per- 
verting followers. 

The  Perversion  to  be  Exposed.  —  In  Chapter  II.,  I  showed,  by 
quotations,  that  the  fathers  considered  sovereignty  to  remain  in  the 
people,  and  the  so-called  governments  to  be  mere  agencies  with  dele- 
gated powers.  Of  course  this  proved  the  falsity  of  the  assumed  "  ab- 


42  A  GENERAL  VIEW. 

solute  supremacy "  of  "  the  government "  over  the  states  and  their 
people.  This  chapter  will  prove  the  following  cognate  assertions  to 
be  not  merely  mistaken  opinions,  but  entire,  though  perhaps  uninten- 
tional, untruths.  They  are  to  be  found  in  Daniel  Webster's  great 
speech  of  1833.  He  asserted  that  "contemporary  history,"  the  Fed- 
eralist, "  the  debates  in  the  conventions  of  states,"  and  "  the  writings 
of  friends  and  foes,"  all  agreed  that  "  a  change  had  been  made,  from  a 
confederacy  of  states,  to  a  different  system;"  that  the  constitution 
was  made  by  "  the  people  of  the  united  states  in  the  aggregate ; " 
that  therein  they,  the  said  people  or  nation,  "  distributed  their  powers 
between  their  general  governments  and  their  several  state  govern- 
ments;"  that  this  was  their  "supreme  law,"  and  that  by  it  "state 
sovereignty  was  effectually  controlled  ; "  or,  as  the  Philadelphia  Con- 
vention more  recently  but  as  correctly  worded  it,  — "  the  govern- 
ment "  has  "  absolute  supremacy,"  and  the  states  are  bound  "  in 
allegiance "  thereto !  It  is  plain  that  these  are  assertions  of  fact. 
They  are  either  true  or  false.  I  shall  prove  them  herein  to  be 
entirely  and  absurdly  untrue. 

The  Inquiry  is  one  of  Fact.  —  We  are  necessarily  dealing  with 
facts,  or  inferences  therefrom,  when  we  attempt  to  ascertain  from  the 
constitution  and  history,  what  the  constitution  and  government  under 
it  are.  When  the  states  (or  the  people)  acted,  what,  in  point  of  fact, 
did  they  make  ?  Was  it  a  federation  of  states,  or  was  it  a  single  state, 
divided  into  counties  or  provinces'?  I  shall  duly  prove  herein  the 
following  facts  :  1st.  That  the  states  existed,  as  separate  and  inde- 
pendent sovereign  states,  before  the  federal  constitution.  2d.  That 
they,  as  commonwealths,  alone  acted  in  establishing  that  constitution 
and  the  government  under  it.  3d.  That  the  entire  existence  and 
powers  of  the  said  government  are  from  and  under  them.  4th.  That 
each  and  every  federal  functionary  is  a  citizen  and  subject  of  a  state, 
elected  by,  and  acting  for,  such  state.  5th.  That  our  "united 
states,"  or  "  union  of  states,"  —  as  these  phrases  indicate,  —  is  a  fed- 
eration of  sovereignties.  Now,  these  are  facts  or  falsehoods.  I  shall 
prove  them  to  be  facts  beyond  controversy,  and  show  that  the  federal 
constitution,  the  history  of  its  formation,  and  all  the  acts  and  records 
of  the  states  concur  in  proving  them.  This  chapter  is  devoted  to 
showing  that  the  fathers  unqualifiedly  asserted  the  union  to  be  a  fed- 
eration of  sovereign  states ;  and  that  they  considered  the  federal  gov- 
ernment to  be  alike  the  creation,  the  agency,  and  the  subject  of  the 
states.  The  italics,  etc.,  will  be  mainly  the  author's. 

Testimony  of  the  Writers  of  the  Federalist.  —  The  statements 
of  Hamilton,  Madison,  Jay,  Washington,  and  Franklin  are  of  more 
weight  than  all  other  authorities,  on  questions  involving  the  origin 


THE  ARCHITECTS'  IDEA  OF  THE  EDIFICE.  43 

and  nature  of  the  constitution ;  and  they  fully  and  precisely  sup- 
port all  the  above  assertions  of  fact.  The  three  first  mentioned 
are  the  great  triumvirate,  who  wrote  the  series  of  papers  in  1788, 
afterwards  collected  in  a  volume,  and  called  the  Federalist.  This 
is  universally  considered  to  be  the  most  authoritative  of  all  com- 
mentaries on  the  federal  constitution,  as  it  was  written  by  the  very 
ablest  of  the  framers,  at  the  time  that  the  states  were  in  process  of 
deciding  upon  it,  and  as  it  powerfully  aided  in  overcoming  the  charges 
against,  and  the  apprehensions  concerning,  the  proposed  system.  I 
wish  it  particularly  noted  that  all  the  extracts  contradict  Messrs. 
Dane,  Story,  and  Webster  —  whose  dogmas  are  above  stated  in  the 
language  of  the  last  —  in  the  most  positive  manner  \  and  they 
decisively  refute  the  numerous  Curtises,  Mansfields,  Jamesons,  Park- 
ers, Brownsons,  Greeleys,  Raymonds,  and  other  "professors  of  consti- 
tutional law,"  politicians,  so-called  statesmen,  and  newspaper  editors, 
who  nowadays  habitually  reiterate  the  assertions  of  the  aforesaid  great 
men,  and  voluminously  sophisticate  to  support  the  same. 

Said  ALEXANDER  HAMILTON,  in  articles  9  and  85  of  the  Federalist : 
"  If  the  new  plan  be  adopted,  the  union  will  still  be,  in  fact  and  in 
theory,  an  association  of  states  or  a  CONFEDERACY."  "Every  constitu- 
tion for  the  united  states  must  inevitably  consist  of  a  great  variety  of 
particulars,  in  which  thirteen  independent  states  are  to  be  accommo- 
dated in  their  interests,  or  opinions  of  interest.  .  .  .  Hence  the 
necessity  of  making  such  a  system  as  will  satisfy  all  the  parties  to  the 
compact"  He  also  said  the  states  are  "  essential  component  parts  of 
the  union."  [II.  Ell.  Deb.  304.]  In  an  address  dated  February  18, 
1789,  to  the  people  of  New  York,  he  said  :  "  The  people  of  this  state 
are  the  SOVEREIGNS  of  it."  The  whole  federal  history,  and  the  present 
constitution  of  New  York,  precisely  quadrate  with  these  principles. 

JAMES  MADISON,  in  Articles  39  and  40  of  the  Federalist,  said  : 
"  Each  state,  in  ratifying  the  constitution,  is  considered  as  a  SOVEREIGN 
body,  independent  of  all  others,  and  only  to  be  bound  by  its  own  vol- 
untary act.  In  this  relation,  then,  the  new  constitution  will  be  a 
federal,  and  not  a  national,  constitution."  "  The  states  are  regarded 
as  distinct  and  independent  SOVEREIGNS  ...  by  the  constitution  pro- 
posed." His  speeches  in  the  Virginia  convention  set  forth  the  same 
views.  [See  III.  Ell.  Deb.  381,  especially.] 

JOHN  JAY  argued  in  favor  of  the  states  "  continuing  united  under 
one  federal  government,  vested  with  sufficient  powers  for  all  general 
and  national  purposes ; "  and  opposed  the  idea  of  "  forming  three  or 
four  confederacies  instead  of  one."  He  further  said  :  "  Some  time 
must  yet  elapse  before  all  the  states  will  have  decided  on  the  present 
plan."  This  he  characterized  as  a  "union  of  states."  I  quote  partly 


44  A   GENERAL  VIEW. 

from  the  Federalist,  and  partly  from  his  "Address  to  the  people  of 
New  York."  [I.  Ell.  Deb.  496.]  In  the  last  he  described  the  general 
government  as  the  agents  and  overseers  for  the  people,  by  whom  they 
are  to  be  appointed. " 

So  we  find  Mr.  Webster's  citation  of  the  Federalist  to  be  without 
warrant,  and  his  assertions  to  be  decisively  contradicted  by  that  great 
authority. 

The  Statements  of  Washington  and  Franklin.  —  GENERAL  WASH- 
INGTON has  left  on  record  numerous  evidences  that  he  precisely  agreed 
with  the  statesmen  heretofore  quoted,  as  well  as  with  Wilson  and 
Dickinson,  to  be  quoted  presently.  He  always  assented  to  the  idea 
that  a  confederacy  of  sovereign  states  was  being  formed.  And  the 
proof  is  direct,  positive  and  abundant,  that  he  recognized  the  states 
as  sovereign  parties  to,  and  sovereign  actors  under,  the  new  system. 
In  a  letter  to  Lafayette,  dated  June  17,  1788,  he  said  :  "I  mentioned 
the  accession  of  Maryland  to  the  proposed  government.  .  .  .  The  ac- 
cession of  one  state  more  will  complete  the  number  (nine)  needed  to 
establish  it." 

To  General  Pinckney,  June  28,  1788,  he  writes  of  the  Virginia  con- 
vention having  adopted  the  constitution  by  89  to  79 ;  of  the  people 
of  Alexandria  rejoicing ;  of  their  enjoyment  being  heightened  by  the 
news  that  "New  Hampshire  had,  on  the  21st  instant,  acceded  to  the 
new  CONFEDERACY  by  a  majority  of  eleven  voices ; "  and  of  "  pouring  a 
libation  to  the  prosperity  of  the  ten  states  that  had  actually  adopted  " 
the  constitution. 

To  Governor  Johnston,  of  North  Carolina,  June  19,  1789,  he  writes 
of  "  the  political  relation  which  is  to  subsist  hereafter  between  the 
state  of  North  Carolina  and  the  states  now  in  union.'" 

To  Madison,  Aug.  3,  1788,  he  writes  of  the  time  when  "the  states 
begin  to  act  under  the  new  form  ; "  and  to  General  Lincoln,  Oct.  26, 
1788,  that  whoever  shall  be  found  to  "enjoy  the  confidence  of  the 
states  so  far  as  to  be  elected  Vice-President "  will  be  acceptable  to  him 
should  he  be  President. 

It  is  well  also  to  note  here  his  endorsement  of  the  expressions  of 
James  Wilson  and  John  Dickinson,  given  below. 

These  and  numerous  other  expressions,  not  incompatible  with  his 
wish  for  a  strong  and  efficient  federal  government,  and  a  lasting 
union,  settle  beyond  doubt  Washington's  view  that  the  states  acceded 
to  the  federal  system  as  parties  to  a  compact,  and  were  to  act  as  sove- 
reigns "under  the  new  form."  It  will  be  shown  in  a  subsequent 
chapter,  by  abundance  of  proof,  that  state  sovereignty  in  the  union 
was  an  essential  part  of  Washington's  political  creed. 

DR.  FRANKLIN  considered  the  constitution  to  be  a  compact  between 


THE  ARCHITECTS'   IDEA  OF  THE  EDIFICE.  45 

sovereign  states;  and  he  proposed,  in  the  convention  of  1787,  the 
second  branch  of  the  federal  congress,  wherein  "each  state  should 
have  equal  suffrage,"  to  secure  "the  SOVEREIGNTIES  of  the  individual 
states  "  and  "  their  authority  over  their  own  citizens."  [V.  Ell.  Deb. 
266.] 

The  Testimony  of  the  Five  next  in  Rank.  —  John  Dickinson, 
Gouverneur  Morris,  James  Wilson,  Tench  Coxe,  and  Samuel  Adams, 
may  be  regarded  as  the  five  next  in  rank  —  if  not  equal  —  to  those 
quoted,  in  efficiency  and  influence,  and  fully  their  peers  in  patriotism, 
ability,  and  zeal,  in  striving  for  "a  more  perfect  union,"  and  "a  more 
efficient  government." 

JOHN  DICKINSON,  who  was  at  one  time  president  of  Delaware,  and 
at  another  of  Pennsylvania,  was  a  leading  statesman  and  political 
writer  of  that  period,  and  a  most  influential  member  of  the  federal 
convention.  In  one  of  his  remarkable  letters,  he  characterizes  the 
new  political  system  as  "  a  confederacy  of  republics,"  "  in  which  the 
SOVEREIGNTY  of  each  state  is  represented  with  equal  suffrage  in  one 
legislative  body,  the  people  of  each  state  ...  in  another,  and  the 
sovereignties  and  people  .  .  .  conjointly  represented  in  a  president." 
[II.  Writings  of  Dickinson,  107.] 

The  views  of  Dickinson  were  those  of  Washington,  as  appears  from 
a  letter  of  the  latter  to  John  Vaughan,  dated  April  27,  1788. 

GOUVERNEUR  MORRIS,  afterward  minister  to  France,  and  United 
States  senator  from  New  York,  the  accomplished  statesman  to  whom, 
in  the  federal  convention,  in  which  he  was  a  delegate  from  Pennsyl- 
vania, was  entrusted  the  rewriting  of  the  constitution,  who,  having 
changed  these  words,  "  We,  the  people  of  the  states,"  etc.,  as  adopted 
by  the  convention,  to  "  We,  the  people  of  the  united  states,"  must  be 
supposed  to  know  their  meaning,  declared,  years  afterward,  that  "the 
constitution  was  a  compact,  not  between  individuals,  but  between 
political  societies,  ....  each  enjoying  SOVEREIGN  power,  and,  of  course, 
equal  rights."  [III.  Life  of  G.  Morris,  p.  193.] 

JAMES  WILSON,  of  Pennsylvania,  a  member  of  both  the  federal  and 
state  conventions,  a  strenuous  advocate  for  a  strong  government,  and 
afterward  one  of  the  ablest  of  the  federal  supreme  judges,  called  the 
general  government  "a  federal  body  of  our  own  creation,"  using 
"  our  "  to  designate  the  people  of  Pennsylvania,  whom  he  was  address- 
ing, and  whose  ratification  he  was  advocating ;  he  stated  the  object  of 
the  convention  of  1787,  to  be  to  induce  the  states  "to  confederate 
anew  on  better  principles"  [V.  Ell.  Deb.  158];  and  he  said,  in  an 
address  early  in  October,  1787,  which  was  published  generally  in  the 
papers  of  that  day,  "  Let  it  be  remembered  that  the  business  of  the 
federal  convention  was  not  local,  but  general ;  not  limited  to  the  views 


46  A   GENERAL   VIEW. 

and  establishments  of  a  single  state,  but  coextensive  with  the  conti- 
nent, and  comprehending  the  views  and  establishments  of  thirteen  in- 
dependent SOVEREIGNTIES."  [II.  Am.  Museuin,  379;  Mass.  Centinel, 
Oct.  24, 1787.]  This  very  address  was  emphatically  approved  by  Gen- 
eral Washington  in  a  letter  to  David  Stuart,  dated  October  17,  1787. 

TENCH  COXE,  of  Pennsylvania,  one  of  the  leading  statesmen,  and 
most  lucid  political  writers  of  that  period,  said  that  though  the  federal 
constitution  was  to  be  adopted  by  the  people,  "  yet  it  was  to  be  done 
in  their  capacities  as  citizens  of  the  several  members  of  our  confed- 
eracy. .  .  .  Had  the  federal  convention  meant  to  exclude  the  idea  of 
union,  that  is,  of  several  and  separate  SOVEREIGNTIES  joining  in  a  CON- 
FEDERACY, they  would  have  said,  '  We,  the  people  of  America,'  for 
union  necessarily  involves  the  idea  of  competent  states,  which  com- 
plete consolidation  excludes.  But  the  severally  of  the  states  is  fre- 
quently recognized  in  the  most  distinct  manner,  in  the  course  of  the 
constitution."  [III.  Am.  Museum,  160,  244.] 

SAMUEL  ADAMS,  a  signer  of  the  Declaration  of  Independence,  than 
whom  none  was  more  patriotic  and  zealous,  or  more  active,  influential, 
and  able  in  establishing  the  federal  polity,  declared,  in  the  convention 
of  Massachusetts,  that  the  amendment  proposed  by  her  (and  after- 
wards adopted  by  the  states),  that  "  all  powers  not  expressly  delegated 
by  the  constitution  were  reserved  to  the  several  states,"  was  ''conso- 
nant with  the  second  article  of  the  present  confederation,  that  each 
state  retains  its  SOVEREIGNTY,  freedom,  and  independence,  and  every 
power  .  .  .  not  expressly  delegated  to  the  united  states."  [II.  Ell. 
Deb.  p.  131.]  And  he  wrote  to  Elbridge  Gerry,  in  congress,  that 
this  amendment,  which  he  urged  the  adoption  of,  would  be  "  a  line 
drawn  as  clearly  as  may  be,  between  the  federal  powers  vested  in 
Congress,  and  the  distinct  SOVEREIGNTY  of  the  several  states,  upon  which 
the  private  and  personal  rights  of  the  citizens  depend."  [III.  Life  of 
Samuel  Adams,  Letter  to  R.  H.  Lee,  July  4,  1789;  also  letter  to  El- 
bridge  Gerry.] 

Another  Decade  of  "Witnesses.  —  The  mass  of  evidence  is  already 
overwhelming,  but  for  the  purpose  of  grouping,  for  general  use,  the 
principal  contemporaneous  statements  of  what  our  system  of  govern- 
ment is,  and  likewise  of  showing  how  studious  the  expositors  of  the 
Massachusetts  school  must  have  been,  to  avoid  citing  and  fairly  pre- 
senting the  real  authorities  on  this  momentous  subject,  I  will  add  the 
testimony  of  ten  more  of 

"  The  few,  the  immortal  names 
That  were  not  born  to  die." 

ROGER  SHERMAN,  one  of  the  committee  to  draw  up  the  Declaration 
of  Independence,  and  a  signer  of  the  same,  a  member  of  the  federal 


THE  ARCHITECTS'  IDEA  OF  THE  EDIFICE.  47 

convention,  and  of  the  ratifying  convention  of  Connecticut,  declared 
that  "  the  government  of  the  United  States  was  instituted  by  a  number 
of  SOVEREIGN  states  for  the  better  security  of  their  rights,  and  the 
advancement  of  their  interests."  l 

Would  not  the  Shermans  of  to-day  find  this  Revolutionary  worthy 
and  his  compatriots  the  best  guides?  Why  turn  the  people  away 
from  old  beacons,  to  follow  will-o'-the-wisps'? 

OLIVER  ELLSWORTH,  who  was  afterward  chief-justice  of  the  United 
States,  spoke  of  the  union  as  a  "confederation,"  and  said  :  "the  con- 
stitution does  not  attempt  to  coerce  SOVEREIGN  bodies  —  states  in  their 
political  capacity,"  but  only  provides  for  legal  coercion  of  individual 
citizens.  [II.  Ell.  Deb.  197.] 

CHANCELLOR  PENDLETON,  the  president  of  the  ratifying  convention 
of  Virginia,  spoke  of  the  people  of  Virginia  as  "  the  fountain  of  all 
power,"  and  said  :  "  If  we  [Virginia]  find  it  to  our  interest  to  be  inti- 
mately connected  with  the  other  twelve  states,  to  establish  one  common 
government,  and  bind  in  one  ligament  the  strength  of  the  thirteen  states, 
we  shall  find  it  necessary  to  delegate  powers  proportionate  to  that  end  ; 
for  the  delegation  of  adequate  powers  in  this  government  is  no  less 
necessary  than  in  our  state  government."  [III.  Ell.  Deb.  297.] 

JOHN  MARSHALL,  afterwards  the  celebrated  chief-justice  of  the 
United  States,  said,  in  the  same  convention,  in  reference  to  the  fear 
expressed  by  Henry  and  Mason,  that  "  a  state  might  be  called  at  the 
bar  of  the  federal  court,"  and  judicial  coercion  be  attempted,  "it  is 
not  rational  to  suppose  that  THE  SOVEREIGN  POWER  should  be  dragged 
before  a  court."  [Ibid.  555.] 

JAMES  IREDELL,  one  of  the  chief  statesmen  of  North  Carolina,  af- 
terwards on  the  supreme  bench  of  the  union,  expressed  similar  views, 
and  said  he  thought  the  federal  senate  "necessary  to  preserve  com- 
pletely the  SOVEREIGNTY  of  the  states"  [IV.  Ell.  Deb.  133.] 

FISHER  AMES,  the  great  orator  of  Massachusetts,  afterwards  her 
senator  in  Congress,  and  one  of  her  most  eminent  statesmen,  said  in 
her  convention  :  "  The  senators  represent  the  SOVEREIGNTY  of  the  states 
...  in  the  qualities  of  ambassadors."  [II.  Ell.  Deb.  46.] 

THEOPHILUS  PARSONS,  "the  celebrated  chief-justice  "  of  Massachu- 
setts, one  of  the  ablest  and  most  influential  members  of  her  conven- 
tion, said  that  the  senate  was  designed  "  to  preserve  the  SOVEREIGNTY 
of  the  states"  [See  Memoirs  of  Parsons,  p.  98.] 

CHRISTOPHER  GORE,  also  one  of  her  leading  statesmen,  said,  on  the 
same  occasion  :  "  The  senate  represents  the  SOVEREIGNTY  of  the  states' 
[II.  Ell.  Deb.  18.] 

1  The  citation  for  this  is  misplaced;  but  in  VI.  Life  and  Times  of  John  Adams,  440 
will  be  found  the  same  statement  of  Sherman's  views,  with  but  slight  verbal  changes. 


48  A   GENERAL  VIEW. 

GOVERNOR  JAMES  BOWDOIN  said,  in  the  same  convention,  in  advo- 
cacy of  the  new  system,  that  "  without  a  confederacy,  the  several  states, 
being  distinct  SOVEREIGNTIES,  .  .  .  would  determine  the  disputes  that 
might  arise,  ...  by  the  law  of  nature,  which  is  the  right  of  the 
strongest."  [II.  Ell.  Deb.  129.] 

GEORGE  CABOT,  another  statesman  of  high  rank  in  Massachusetts, 
said,  in  his  argument  for  the  constitution  :  "  The  senate  is  a  represen- 
tation of  the  SOVEREIGNTY  of  the  individual  states."  [Ibid.  26  ;  see  also 
Memoirs  of  Parsons.] 

Only  a  Federation  of  Sovereignties  was  Possible.  —  Many  more 
such  extracts  might  be  presented,  but  these  will  suffice ;  for,  among 
the  leading  fathers,  there  was  no  dissent.  Indeed,  there  could  be,  on 
this  subject,  no  difference  of  opinion,  since  the  states  were  equal.  No 
authority  was  above  them ;  sovereignty  belonged  to  each  common- 
wealth as  an  essential  part  of  her  nature  ;  every  organic  law  expressed 
or  implied  it ;  and  the  solemn  league  between  the  states  declared  that 
each  retained  her  sovereignty.  This  all  comprehensive  right  must 
have  remained  in  her  till  she  completed  the  work,  and,  of  course, 
afterwards.  The  established  status  of  these  commonwealths,  and  the 
law  of  their  beings,  absolutely  controlled  the  action  of  the  fathers. 
Moreover,  these  were  members,  citizens,  subjects,  and  servants  of  their 
respective  states,  and  had  no  authority  whatever  to  bind  them,  and, 
a  fortiori,  none  to  impair  their  integrity  and  sovereignty.  The  said 
states  associated,  and  bound  themselves  by  name,  as  distinct  and  com- 
plete political  bodies  [Art.  I.  §  2,  and  Art.  VII.],  declared  their  compact 
of  association  to  be  established  "  between  the  states  so  [i.e.  by  their 
respective  conventions]  ratifying  the  same  "  [Art.  VII.],  and  provided 
for  governing  themselves  in  federal  matters,  by  electing  and  empower- 
ing their  own  citizens  and  subjects,  as  their  servants  and  agents,  to 
perform  governmental  duties.  [Art.  I.  §§  2,  3  ;  Art.  II.  §  1.] 

I  show,  then,  in  this  chapter,  not  only  that  the  fathers  declared  the 
union  to  be  a  federation  of  "SOVEREIGNTIES,"  but  that  equal,  distinct, 
and  sovereign  states  could  not  combine  for  general  government  by  any 
other  system.  And  we  shall  see  that  all  federal  history  supports  me. 
The  views  of  the  great  architects  will  be  hereinafter  given  more  at 
length. 

The  very  authors  of  the  great  movement  for  "  a  more  perfect  union," 
and  "a  more  efficient  general  government,"  were  the  men  that  made 
the  above  utterances.  They  were  the  very  men  who  laboriously 
matured  each  and  all  of  the  provisions  of  the  constitution ;  who  rep- 
resented the  people,  knew  their  will,  and  tried  to  do  it ;  whose  every 
explanation  was  corroborated,  and  position  sustained,  by  the  final 
sovereign  acts  of  their  respective  states,  as  will  be  quoted  and  shown ; 


THE  ARCHITECTS'  IDEA  OF  THE  EDIFICE.  49 

and  who  were  all  selected  afterward  by  the  people  to  carry  the  organ- 
ized system  into  effect.  Not  a  molehill  can  be  built  up  opposite  to 
this  mountain  of  testimony. 

Professors  of  Fact,  as  well  as  of  Law,  wanted.  —  In  conclusion 
of  this  chapter,  I  must  express  the  hope  that  certain  of  our  professors 
of  constitutional  law,  will  become  professors  of  constitutional  facts,  and 
in  future  editions  of  the  "  History  of  the  Constitution,"  the  "  Con- 
stitutional Convention,''  the  "  Political  Grammar,"  etc.,  quote  and 
comment  on  the  foregoing,  and  numerous  other  kindred  passages  which 
the  records  of  the  country  contain,  and  which  must  appear  in  any  true 
history  or  unsophistical  exposition  of  our  federal  system ;  also  that  our 
lawyers,  editors,  politicians,  and  so-called  statesmen  may  learn  from 
the  above  and  subsequent  extracts,  what  few  of  them  seem  to  know, 
namely,  that  state  sovereignty  is  not  a  mere  deduction,  made  by  Jef- 
ferson and  others,  after  the  federal  compact  was  formed,  and  expressed 
originally  in  the  Resolutions  of  1798  and  1799,  but  is  a  great  and 
indestructible  fact  or  entity,  which  was  recognized  by  all  the  fathers  as 
essential  and  vital  to  each  commonwealth  of  the  federalized  states,  and 
as  an  integral  part  of  such  state's  being.  Jefferson  only  bore  the  rela- 
tion to  state  sovereignty,  that  the  advocate  does  to  the  pre-existent 
truth  he  utters  or  expounds. 

4 


CHAPTEE  VIII 
THE   SUBJECT  IS  FACTS. 

IN  an  exposition  of  our  general  polity,  we  have  mainly  to  do  with 
pre-existent  sovereign  states,  and  their  actions,  as  facts ;  with  their 
general  constitution  as  a  fact ;  with  testimonies  as  to  its  character, 
derived  from  public  records  and  historic  statements ;  with  contempo- 
raneous explanations  of  meanings  and  understandings  by  statesmen 
and  states;  and,  finally,  with  technical  definitions  by  publicists. 
These  are  all  matters  of  fact,  and  our  system  —  fully  evidenced  by 
them  —  is  itself  a  stupendous  fact  or  entity  to  be  described. 

Interpretation  comes  after  Establishment.  —  After  the  constitu- 
tion was  established  and  completed  as  a  political  entity,  and  was 
susceptible  of  being  characterized  and  technically  named,  the  con- 
gress of  the  states,  on  the  13th  of  September,  1788,  recommended 
to  the  several  commonwealths  that  they  should  proceed  to  appoint 
electors  of  President,  and  elect  their  delegations  to  the  congress ; 
and  that,  on  the  4th  March,  1789,  "THE  CONGRESS,  TOGETHER  WITH 
THE  PRESIDENT,  should,  without  delay,  proceed  TO  EXECUTE  THIS  CON- 
STITUTION." 

When  they  "proceeded  to  execute  "  their  duties,  these  sworn  officials, 
upon  finding  some  word,  phrase,  sentence,  or  clause  that  was  ambigu- 
ous or  otherwise  doubtful,  reached  for  the  first  time  the  field  of  inter- 
pretation. But  this  could  have  nothing  to  do  with  the  pre-established 
system  in  which  they  were  to  work.  A  law  under  a  monarchy,  aris- 
tocracy, or  republic,  would  require  one  and  the  same  construction  to 
determine  its  meaning,  if  couched  in  the  same  language ;  and  the 
ascertaining  of  duty  or  rights,  from  doubtful  words  or  phrases,  by 
functionaries,  is  a  very  different  thing  from  describing  and  character- 
izing the  political  system  or  form  of  government.  The  essentials  and 
the  character  of  the  system  were  fixed  and  passed  in  the  beginning, 
as  facts  or  truths ;  but  interpretation  will  go  on  to  the  last  syllable  of 
language,  and  of  recorded  time. 

So-called  Schools  of  Interpretation. —  While  commenting  on 
this  subject,  I  will  use  as  a  text,  an  erroneous  statement  of  Hon. 


THE   SUBJECT  IS  FACTS.  51 

George  T.  Curtis,  especially  as  he  is  now  considered  the  best  repre- 
sentative —  if  not  the  chief  teacher,  of  the  so-called  "  Massachusetts 
School."  In  a  letter  dated  July  25th,  1868,  is  the  following  passage  : 
"  There  have  always  been,  in  this  country,  two  schools  of  interpre- 
tation, taking  opposite  views  of  the  constitution  of  the  united 
states,"  etc. 

I  shall  now  try  to  show  that  this  assertion  is  incorrect,  and  likely 
to  mislead.  Whether  the  constitution  is  a  compact  or  not ;  and 
whether  it  makes  a  federation  of  the  states,  or  nationalizes  them  into 
one  state  —  are  questions  of  fact,  to  be  settled  by  the  instrument  and 
historical  evidences.  Look  at  the  map,  and  reflect  a  moment  upon 
the  states  there  represented  ;  we  see  communities,  —  each  thoroughly 
organized  and  capacitated  to  do  every  possible  act  of  a  nation.  They 
are  political  entities,  —  established  facts,  as  palpable  and  distinct  as 
the  stones  of  a  pavement  or  the  pillars  of  a  colonnade.  We  find,  in 
the  historical  records,  that  each  state,  at  the  very  time  that  all.  were 
framing,  discussing,  and  ratifying  the  constitution,  was  sovereign,  and 
was  so  described  by  herself  in  her  organic  law,  and  by  all  the  states 
in  the  federal  compact,  just  as  George  III.  had  done  by  treaty.  We 
find  also,  in  the  same  records,  that  each  of  the  states,  in  ratifying  the 
constitution,  did  it  in  her  own  time,  place,  and  convention,  and  by 
her  own  absolute  vote,  — the  first  state  ratifying  December  7,  1787, 
and  the  last,  May  20,  1790.  And,  lastly,  we  find  from  Article  VII. 
that  the  constitution  was  to  be  "  established  between  the  states  so 
[t.  e.  by  conventions]  ratifying."  These  are  facts  which  even  Deity 
cannot  destroy  or  impair ;  and  they,  according  to  all  publicists,  pre- 
cisely fill  up  the  definition  of  a  league  or  union  of  states,  just  as,  ac- 
cording to  all  lawyers,  certain  facts  fill  the  definition  of  murder  or 
larceny.1 

Now,  a  class  of  persons  in  our  country  have  persistently  asserted 
these  facts  in  political  writings,  speeches,  state  papers,  commentaries, 
party  platforms,  and  law  books".  They  recognize  as  so  many  absolute 
political  entities  the  united  republics  of  America,  — in  other  words, 
"  the  United  States  of  America,"  —  this  being  the  descriptive  phrase 
of  the  constitution,  the  title  of  the  federation.  They  simply  repeat 
the  truth.  They  neither  form  nor  belong  to  any  "school  of  in- 
terpretation." 

But  after  forty  years  had  passed  over  our  federal  system,  during 

1  Jeremy  Bentham  in  his  "Fragment  on  Government"  [p.  12]  says  that  anyone 
who  speaks  or  writes  on  the  subject  of  law,  takes  on  himself  two  characters,  that  of  ex- 
positor, and  that  of  censor.  "  It  belongs  to  the  former  to  explain  what  he  supposes  the 
law  is  ;  to  the  latter  to  tell  us  what  he  thinks  it  ought  to  be.  The  former,  therefore,  is 
principally  occupied  in  stating,  or  in  inquiring  after,  facts,  the  latter  in  discussing 
reasons." 


52  A  GENERAL  VIEW. 

which  all  its  friends  held  the  idea  of  associated  states,  and  the  kin- 
dred idea  that  the  people  were  sovereign  commonwealths  which,  in 
self-government,  separately  attended  to  all  home  affairs,  and  jointly 
to  a  few  general  and  all  foreign  affairs,  there  arose  and  grew,  under 
the  auspices  of  Nathan  Dane,  Joseph  Story,  and  Daniel  Webster, 
what  is  called  "  the  Massachusetts  school." 

The  Chief  Expounders.  —  DANE  was  an  original  enemy  of  the 
constitution,  and  he  probably  wished  his  strictures  to  pass  as  exposi- 
tions :  STORY,  broad-minded,  thought  a  grand  nation,  and  power 
among  nations,  might,  could,  would,  and  should  grow  from  construc- 
tion, and  he  was  in  the  potential  mood ;  and,  moreover,  his  construc- 
tion meant  fabrication  :  while  WEBSTER,  as  the  advocate,  aimed  at 
the  triumph  and  pecuniary  advantage  of  his  state  and  section  :  and 
directed  his  great  intellect  and  luminous  logic  to  the  sophistical  dis- 
proof of  his  own  principles;  viz.,  that  "  the  original  parties  to  the 
constitution  were  the  thirteen  confederated  states,"  and  that  their 
constitutional  obligations  "rest  on  compact  and  plighted  faith." 
These  are  his  very  words,  which,  when  he  approached  his  final  ac- 
count, he  substantially  reiterated,  —  but  alas  !  too  late ;  for  he  had 
then  produced  those  "  public  convictions,"  as  Mr.  Curtis  calls  them, 
which  brought  war  and  woe  !  As  to  MR.  CURTIS,  he  seems  merely  to 
repeat  and  amplify  what  the  others  have  written  or  said. 

The  "  School "  was  one  of  Perversion.  —  Even  this  wras  not  a 
"  school  of  interpretation,"  as  Mr.  Curtis  would  fain  have  us  believe, 
for  its  dogmas  were  not  the  result  of  interpretation,  but  were  asser- 
tions of  fact  which  were  true  or  false,  and  which,  at  the  time  the 
constitution  was  being  established  "  between  the  states  ratifying  the 
same,"  were  charged  upon  the  federal  system  by  its  enemies,  and  dis- 
proved by  its  friends. 

Daniel  Webster  taught  the  said  dogmas  in  1830-33,  substantially 
as  follows  :  that  the  constitution  was  made  by  the  people  of  all  the 
states,  acting  as  one  state  or  nation ;  that  they  therein  divided  the 
powers  they  chose  to  grant,  between  their  general  and  local  govern- 
ments ;  that  their  said  constitution,  as  far  as  it  went,  "  effectually  con- 
trolled state  sovereignty/'  —  thus  reducing  states  to  provinces,  or 
counties,  but  "  expressly  reserving  "  to  them,  such  "  political  rights 
and  powers  "  as  they  —  the  said  nation  —  wished  them  to  possess ;  and 
that  the  right  of  determining  the  extent  of  its  powers,  belonged  to  the 
government  itself.  Story's  teachings  were  similar.  Lincoln  substan- 
tially repeated  these  ideas  in  1861,  as  did  the  Philadelphia  convention 
of  1866,  and  the  "  New  York  World,"  in  its  issue  of  June  3d,  1868  ! 

All  these  expounders  assert  that  the  constitution  contains  these 
ideas,  though  in  fact  no  words  of  it  express  or  imply  them.  Nor  can 


THE  SUBJECT  IS  FACTS.  53 

they  be  evolved  by  construction.  They  were,  as  facts,  true  or  untrue, 
when  the  constitution  was  discussed  by  the  states,  and,  a  fortiori, 
when  it  was  ratified  by  nine  of  them,  and  thereby  established. 
Hence  the  proof  of  the  action  of  the  commonwealths,  and  the  solemn 
statements  of  the  fathers,  herein  faithfully  given  and  to  be  presented, 
are  of  infinite  importance,  for  they  end  doubt,  and  the  pseudo  "  school 
of  interpretation,"  at  the  same  time. 

In  1787-88  these  very  ideas  were  unavailingly  urged  as  charges 
against  the  federal  system  by  Lowndes,  Henry,  Martin,  Yates,  Lan- 
sing, and  other  enemies  thereof;  and  but  for  the  disproof  of  them  by 
Hamilton,  Madison,  Wilson,  Dickinson  and  others,  the  said  system 
would  have  been  overwhelmingly  defeated.  The  constitution  was 
fully  established,  and  it  formed  a  federation  or  not,  in  July,  1788. 
Such  a  thing  as  practical  interpretation  could  not  then  arise,  for  it 
was  thereafter  that  the  government  provided  for  had  to  be  elected, 
organized,  installed,  and  set  to  work  under  the  constitution ;  and  it 
was  only  after  these  things  were  done  that,  in  congress  and  the 
courts,  interpretations  to  find  the  intent  of  specific  articles  or  clauses 
could  be  had  or  were  needed.  Hence  the  peculiar  views  concerning 
our  polity  which  distinguish  "the  Massachusetts  school,"  do  not  en- 
title it  to  be  called  a  "  school  of  interpretation."  It  asserts  as  a  fact 
that  our  federal  instrument  constitutes  a  state  or  nation,  when  the 
truth  is,  it  constitutes  a  union  of  states  or  federation.  Should  we  not 
call  it  a  school  of  fiction,  or  school  of  perversion  1 

"  School"  is  a  Misnomer,  except  in  the  Sense  of  Flock.  —  Nor 
do  the  professed  exegetical  efforts  of  the  faculty  on  leading  questions 
seem  to  entitle  them  to  be  called  a  "  school,"  in  any  sense,  for 

1st.  They  assert,  as  a  fact,  that  the  united  states  are  a  national 
unity  or  state,  because  the  preamble  says :  "  We,  the  people  of  the 
United  States,  do  ordain  and  establish  this  constitution  ; "  when  the 
phrase  itself  disproves  the  assertion,  necessitating,  as  it  does,  pre- 
existent  commonwealths,  which,  being  independent,  must  voluntarily 
have  come  together,  as  thirteen  persons  would,  for  a  common  purpose, 
without  the  associates  losing  their  individuality.  This  alone  is  de- 
cisive ;  and  the  phrases  that  signify  "  union  of  states  "  and  "  citizens 
of  states ; "  the  fact  that  the  states  are  named  in  the  instrument ;  the 
seventh  and  characterizing  article;  and  the  numerous  historical  proofs 
of  the  error  of  the  assertion,  need  not  be  adduced.  2d.  They 
assert  that  the  article  declaring  the  constitution  to  be  "  the  supreme 
law  of  the  land,"  makes  the  government  which  springs  from  the  law, 
and  is  subject  to  the  law,  supreme  over  the  law-maker.  Stating  their 
contention  is  the  reductio  ad  absurdum.  3d.  They  say  that  while 
the  "  constitution  "  created  a  national  sovereignty  for  certain  "  speci- 


54  A  GENERAL  VIEW. 

fied  purposes,  it  expressly  reserved  to  the  states  all  other  political 
rights  and  powers."  [World,  June  3,  1868;  Lincoln,  1861.]  As  to 
the  "  national  sovereignty,"  see  the  last  point.  A  government  in  a 
republic  cannot  be  a  sovereignty  at  all.  It  can  only  have  delegated 
powers,  and  be  the  creature  and  subordinate  of  the  delegators.  It 
(the  constitution)  reserves  nothing;  but  the  states  that  made  it,  "re- 
served "  all  they  did  not  delegate.  4th.  They  speak  of  the  "  consti- 
tution prohibiting"  states  from  "laying  duties,"  "keeping  troops 
without  consent  of  Congress,"  "  coining  money,"  etc.,  etc.  [See  Mr. 
Curtis's  letter  to  The  Round  Table,  July  25, 1868] ;  whereas  these 
so-called  prohibitions  are  self-imposed  restrictions  upon  the  states, 
which  the  constitution  merely  evidences. 

These  few  of  the  numerous  "  interpretations  "  show  what  sort  of 
a  school  the  so-called  interpreters  of  Massachusetts  keep.  If  the 
word  simply  implies  gregariousness,  its  propriety  cannot  be  questioned, 
for  the  gathering  and  following  have  been  large.  But,  aside  from 
interest,  the  only  reason  for  the  following  is  best  given  by  Jeremy 
Bentham,  in  his  "  Fragment  on  Government "  [page  25]. 

"  Under  the  sanction  of  a  great  name,  every  string  of  words,  how- 
ever unmeaning,  will  have  a  certain  currency.  Reputation  adds 
weight  to  sentiments  which,  had  they  stood  alone,  might  have  drawn 
nothing,  perhaps,  but  contempt.  .  .  .  Wonderful  is  that  influence 
which  is  gained  over  young  minds  by  the  man  who,  on  account  of 
whatever  class  of  merit,  is  esteemed  in  the  character  of  a  preceptor. 
Those  who  have  derived,  or  fancy  they  have  derived,  knowledge  from 
what  he  knows,  or  appears  to  know,  will  naturally  be  for  judging  as 
he  judges,  reasoning  as  he  reasons,  approving  as  he  approves,  and  con- 
demning as  he  condemns." 

It  is  surprising,  and  indeed  humiliating,  to  see  how  dependent  and 
gregarious  the  most  of  our  learned  commentators,  critics,  editors,  and 
statesmen  are,  even  in  matters  of  high  and  momentous  duty,  requir- 
ing independent  and  conscientious  judgment.  All  must  follow  some 
bell.  For  instance,  in  our  day  we  have  numerous  expositors  getting 
an  idea  or  prejudice  from  Webster  or  Story,  and  never  looking  at  the 
basis  of  it,  but  spending  the  rest  of  their  lives  in  obtaining  suste- 
nance for  it,  and  passing  by,  in  the  groping  and  culling  search,  innu- 
merable shining,  aye,  almost  dazzling  gems  of  counter- truth,  without 
noticing  them. 

A  Passing  Tribute  to  the  Old  Bay  State.  —  In  proceeding  to  show 
that  the  whole  ground  of  controversy  between  the  federal  and  the  na- 
tional theories,  is  covered  by  averments  of  fact,  or  inferences  there- 
from ;  and  that,  as  the  one  theory  is  plain  truth,  and  the  other  plain 
untruth,  the  American  people  should  stop  the  controversy  at  once,  by 


THE   SUBJECT  IS  FACTS.  55 

branding  as  falsifiers  one  or  the  other  of  the  two  sets  of  dogmatists ; 
it  is  but  fair  and  dutiful  to  distinguish  between  the  commonwealth  of 
Massachusetts,  and  those  unworthy  sons  who  call  themselves  or  are 
called  "  the  Massachusetts  school "  of  interpretation,  while  they  sap 
her  statehood,  pervert  her  faith,  and  tarnish  her  name. 

In  history  she  is  the  most  conspicuous  of  the  authors,  vindicators, 
and  exemplars  of  American  institutional  liberty.  Her  principles, 
firmly  established  and  indelibly  written  by  herself,  are  set  forth  in 
the  preceding  chapters  ;  and  the  dogmas  of  the  so-called  "  Massachu- 
setts school "  not  only  find  no  sanction  in  her  early  and  genuine  his- 
tory, but  are  decisively  refuted  thereby.  And  though  her  record 
may  now  be  suppressed,  her  wisdom  silenced,  and  her  patriotism 
lulled  to  sleep,  by  sophists  and  scheming  politicians,  yet  her  heart 
is  the  heart  of  humanity,  whose  impulses  are  pure  and  just ;  and 
it  will  finally  prove  to  be  as  true  to  liberty  as  the  needle  is  to  the 

pole  :  — 

"Compulsion,  from  its  destined  course, 
The  magnet  may  awhile  detain  ; 
But,  when  no  more  withheld  by  force, 
It  trembles  to  its  north  again." 

Averments  of  Fact  —  Skeleton  of  Argument.  —  The  following 
propositions  will  show  the  subject  to  be  exclusively  one  of  fact,  while 
they  exhibit  the  scope  of  the  present  work.  The  nerves,  sinews,  veins, 
flesh  and  blood,  will  grow  upon  the  skeleton  in  the  subsequent  pages, 
and,  perhaps,  make  of  it  "a  form  of  life  and  light." 

THE    REPUBLIC. 

1.  The  state  is  the  people  thereof :  they  are  the  state. 

2.  No  other  organization  of  self-governing  people  exists. 

3.  Such  societies  alone  are  "  the  people  of  the  united  states." 

4.  "  All  political  power  is  inherent "  in  such  societies. 

5.  So  the  state  constitutions  declare  or  imply. 

6.  Hence  each  state  is  sovereign,  i.  e.  has  the  "  all-power." 

7.  It  is  a  completely  organized,  self-governing  body. 

8.  The  people  are  not  sovereign  as  individuals.       \ 

9.  Sovereignty  is  only  preclicable  of  the  organized  people. 

10.  Societal  organization  was  completed,  in  forming  the  state. 

11.  Hence,  the  alleged  national  society  was  impossible. 

12.  All  the  states  have  agreed  that  each  is  sovereign. 

13.  That  is  to  say,  each  has  the  right  of  self-government. 

14.  The  voting  citizens  hold  and  wield  the  governing  power. 

15.  The  authority  of  voters  is  an  endowment  by  the  state. 

16.  With  it  the  voters  express  the  sovereign  will. 

17.  Such  state  is  the  republic,  or  self-governing  people. 

18.  It  is  the  only  possible  dwelling  of  sovereign  mind. 


56  A   GENERAL   VIEW. 

19.  Making  constitutions  and  governing,  are  functional  acts. 

20.  The  state's  mind  is  intact  after,  as  before  such  action. 

THE    REPUBLIC    OF    REPUBLICS. 

21.  The  states  in  union  are  the  republic  of  republics. 

22.  If  nation  there  be,  they  are  the  integers —  not  fractions. 

23.  Hamilton  called  them  the  "  essential  component  parts." 

24.  Joel  Barlow  called  the  states  in  union  federalized  states. 

25.  The  fathers  all  similarly  characterized  the  system. 

26.  It  answers  to  Montesquieu's  "republic  of  republics." 

27.  Its  members  are  moral  or  corporate,  not  natural  persons. 

28.  The  general  sovereignty  is  that  of  the  states  allied. 

29.  They  severally  delegate  "  powers,"  not  sovereignty. 

30.  Their  constitution  only  contains  delegations. 

31.  The  convention  of '87  called  it  a  "delegation"  and  a  "trust." 

32.  So  Washington  wrote,  by  their  "  unanimous  order." 

33.  The  constitution  itself  fully  sustains  the  averment. 

34.  All  not  delegated  are  reserved  —  kept  out  of  the  pact. 

35.  These  delegations  cannot  belong  to  "  trustees  "  or  "  agents." 

36.  Such  powers  must  belong  to  the  delegating  states. 

37.  Hence,  the  federal  government  cannot  be  sovereign. 

38.  Hence,  too,  each  ratifying  and  delegating  state  is  so. 

39.  Each  state  ratified  by  exerting  her  mind  and  will. 

40.  This  alone  subjected  her  people  to  the  constitution. 

41.  Hence,  13  states  "ordained  and  established"  the  compact. 

CITIZENSHIP    AND    ALLEGIANCE. 

42.  Citizens  remained  "  citizens  of  different  states." 

43.  So  the  federal  compact  declares  and  implies. 

44.  The  state  alone  has  authority  to  govern  her  citizens. 

45.  The  federal  powers  they  obey  are  delegated  by  her. 

46.  Protection  and  allegiance  are  reciprocal  obligations. 

47.  Protection  is  due  from  the  society  to  the  member. 

48.  Allegiance  is  due  from  the  said  citizen  to  society. 

49.  The  tie  of  allegiance,  then,  is  the  social  compact. 

50.  By  this  compact,  the  will  of  all  wholly  governs  each. 

51.  This  is  the  sole  cohesive  force  of  a  republic. 

52.  All  citizens  are  members  and  subjects  of  states. 

53.  The  transfer  of  citizenship  would  dissolve  the  state. 

54.  Citizenship  or  allegiance  was  never  transferred. 

55.  President  Jackson  greatly  erred  in  saying  it  was. 

TREASON. 

56.  Treason  is  a  citizen's  breach  of  allegiance  to  his  sovereign. 

57.  The  society  is  the  sovereign,  and  object  of  the  crime. 

58.  "  Treason  against  the  U.  S."  is  "  levying  war  against  THEM." 


THE   SUBJECT  IS  FACTS.  57, 

59.  It  is  not  "  levying  war  against  "  the  nation  or  government. 

60.  Nor  is  it  "  levying  war  against  "  the  union  or  association. 

61.  But  it  is  "  levying  war  against"  the  described  "  states" 

62.  A  co-action  of  state  wills  established  and  denned  the  crime. 

63.  The  power  to  try  and  to  punish  it,  is  delegated  by  each  state. 

64.  Obviously  the  crime  is  against  the  guilty  citizen's  state. 

65.  Davis  and  Lee  were  true  to  their  respective  states. 

66.  Hence  they  were  patriots  and  not  traitors. 

True  Patriotism  is  Fidelity  to  the  Commonwealth.  —  True  pat- 
riotism must  be  devotion  and  fidelity  to  one's  commonwealth.  Her 
institutes  or  laws,  whether  federal  or  domestic,  must  be  obeyed  by 
him,  because  she  commands  it.  The  state,  voluntarily  joined  in  de- 
nning the  crime  of  treason  against  the  United  States,  and  punishing 
it.  If  one  of  them  reverse  her  will,  and  disjoin  herself,  the  duty  and 
the  crime  cease,  for  cessante  ratione  legis  cessat  lex. 

Indignant  expounder !  hurl  no  bolt  at  me !  for  Hamilton  is  my 
shield  :  "  The  state  governments,"  said  he,  "  will,  in  all  possible  con- 
tingencies, afford  complete  security  against  invasions  of  the  public 
liberty  by  national  authority.  In  a  confederacy,  the  people,  without 
exaggeration,  may  be  said  to  be  entirely  masters  of  their  own  fate." 
[Federalist,  28.] 

Government  is  Mental  and  Functional  Action.  —  The  only  mind 
exercised  was  that  of  the  commonwealth.  Such  acts  are  natural, 
being  just  what  society  was  formed  for,  and  being  just  as  little  calcu- 
lated.to  destroy,  or,  in  any  wise  impair,  the  "moral  person,"  i.  e.  the 
body-politic,  as  the  functional  action  of  the  brain,  heart,  lungs,  or 
stomach  is  to  do  so  to  the  natural  person.  A  republican  common- 
wealth's acts  of  self-government,  whether  in  making  constitutions  of 
government,  or  acting  under  them,  are  entirely  functional,  and  not 
self-destructive  or  revolutionary,  and  the  mistake  of  supposing  the 
states  were  resolved  into  a  new  state,  by  the  voluntary  and  separate 
action  of  the  thirteen,  is  alike  pitiable  and  pernicious.  If  the  "pub- 
lic conviction  "  that  this  was  done,  was  as  Mr.  Curtis  claims,  brought 
about  by  Daniel  Webster,  that  great  man  is  to  be  credited  with  having 
produced  our  "  abomination  of  desolation,"  —  the  war  against  state- 
hood, resulting  in  the  destruction  of  our  glorious  commonwealths  ! 

The  Minds  of  the  Political  Bodies  still  live.  —  As  the  estab- 
lishment of  the  federal  system  was  an  act  of  mind,  the  acting 
wills  must  have  lasted  through  the  work  they  began,  because  they 
had  to  complete  it,  and  afterwards  cause  obedience  to  it;  and  be- 
cause the  future  duty  of  amendment,  by  the  same  wills,  was  con- 
templated and  provided  for :  and  accordingly  it  has  been  since  done 
several  times. 


58  A  GENERAL  VIEW. 

The  same  mental  organism  now  exists  in  working  order,  with  com- 
plete individuality,  and  separate  mind  and  will.  The  states  are  not 
nationalized  or  consolidated  into  one.  Nor  are  they  in  any  respect 
changed  either  in  form  or  substance.  They  still  are  the  "  union  of 
states," l  or  "  united  states : "  but  it  remains  to  be  seen  whether 
their  wills  are  enslaved  —  deprived  of  volition  !  —  whether  the  union, 
once  voluntary  —  is  now  constrained  !  whether  the  once  "  free,  sove- 
reign and  independent  states  "  are  shackled  !  — pinned  together  by 
bayonets !  —  whether,  in  fine,  the  once  proud  commonwealths  of 
America  are  remanded  to  their  provincialism  !  and  brought  under 
the  most  heartless  and  unconscionable  of  all  despotisms,  —  a  cor- 
porate monarchy  ! 

1  As  "the  constitution  of  the  united  states  "  contains  the  phrases,  "united  states," 
"union  of  states,"  and  "citizens  of  states,"  or  their  equivalents,  I  will  hereafter,  for 
convenience,  quote  them  thus  —  the  following  actual  phrases  being  my  justification  for 
the  last  two  of  them :  — 

"The  several  states  .  .  .  within  this  union."  [Art.  I.  §  2.]  "New  states  may  be 
admitted  .  .  .  into  this  union."  [Art.  IV.  §  3.]  "Every  state  in  this  union."  [Art. 
IV.  §  4.]  "  The  citizens  of  each  state."  [Art.  IV.  §  2.]  "  Citizens  of  another  state." 
[Art.  III.  §  2.]  "  Citizens  of  different  states."  [Ibid.]  "  Citizens  of  the  same  state." 
[Ibid.]  "A  state  or  the  citizens  thereof."  [Ibid.]  "Citizens  of  another  state." 
[Amendment  XI.] 


CHAPTEE  IX. 
CONCLUSIVE  EVIDENCE. 

TO  quote  Massachusetts  and  New  York,  on  the  vital  points  pro- 
pounded herein,  will  astonish  and  instruct  the  most  of  our 
people,  while  it  will  show  an  ample  and  solid  basis  for  the  foregoing 
theory,  and  mark  a  decisive  step  in  the  great  argument.  And  their 
august  testimony  is  all  the  more  fit  and  forcible,  from  their  being  the 
main  sources  of  perverting  exposition,  or  so-called  interpretation. 

As  the  people,  in  the  functional  performance  of  self-government, 
must  act  as  they  are  organized  and  capacitated  to  do,  and  govern 
through  agents,  the  security  of  their  statehood  and  freedom  must 
mainly  be  the  honor  and  ability  of  their  functionaries.  And  "  the 
constitution,"  as  Daniel  Webster  said,  "  lays  its  hand  on  individual 
conscience  and  individual  duty,"  for  its  "preservation,"  requiring 
solemn  oaths  from  its  officials  ;  so  that  one  of  them  who  "  acts  outside 
of  the  constitution"  and  uses  powers  not  delegated,  i.e.  powers  retained 
or  kept,  by  the  states,  out  of  the  constitution,  is  a  perjured  usurper, 
as  well  as  a  traitor. 

So,  as  to  the  preservation  of  the  union  by  the  commonwealths. 
They  must  observe  and  act  on  the  terms,  through  oath-bound  agents 
or  representatives ;  and  the  sacred  faith  of  each  is  pledged ;  so  that, 
if  the  terms  be  violated,  we  have  not  only  official  perjury,  but  an  ex- 
hibition of  Punic  faith,  which  should  subject  the  violators  to  outlawry 
under  the  jus  gentium. 

In  a  most  studied  report  on  the  Missouri  question,  made  to  the 
people  of  Boston,  in  1819,  by  Daniel  Webster  and  others,  as  a  com- 
mittee [see  Appendix  E],  he  says  that  "  the  only  parties  to  the  consti- 
tution, contemplated  by  it  originally,  were  the  thirteen  confederated 
states ; "  and  that  the  terms  of  their  union  "  rest  on  compact  and 
plighted  faith."  The  above  expressions  show  that  the  hold,  and 
perhaps  the  only  hold,  on  rulers  and  states,  is  on  their  morality,  honor, 
good  faith  and  conscience,  —  these,  in  fact,  from  the  nature  of  the 
case,  being  the  main  securities  of  either  republican  or  federal  liberty. 


60  A   GENERAL  VIEW. 

Now  let  Freedom  "  lay  her  hand  on  the  individual  conscience,  and 
the  individual  duty  "  of  Massachusetts  and  New  York,  for  a  statement 
by  them  of  their  record  as  to  what  our  polity  is. 

The  Testimony  of  Massachusetts.  —  Assuming  her  to  be  what  all 
publicists  say  a  state  is  —  "a  moral  person ; "  crediting  her  with 
mind  and  moral  sense ;  and  appealing  to  her  honor,  plighted  faith 
and  conscience,  she  is  respectfully  asked  what  status  and  condition  a 
state  has  in  the  union  1  She  answers  with  her  solemn  record,  made 
up  most  deliberately  before  the  world,  and  under  the  eye  of  God,  in 
the  terms  now  to  be  given. 

In  1780,  her  people,  through  a  convention,  and  under  the  inspira- 
tion of  Freedom,  made  the  declarations  now  to  be  quoted ;  and,  de- 
cennially, ever  since,  they  have  re-declared  the  same  great  truths,  —  the 
very  institutes  of  Freedom  !  —  all  to  be  found  in  her  present  consti- 
tution, which  supports,  in  all  respects,  as  will  be  seen,  the  idea  of  the 
absolute  sovereignty  of  the  states  in  the  union,  association,  or  federa- 
tion, —  whichever  the  system  may  be  called. 

The  Object  of  Government.  —  "  The  end  of  the  institution,  main- 
tenance and  administration  of  government,  is  to  secure  the  existence 
of  the  body-politic,  to  protect  it,  and  to  furnish  the  individuals  who 
compose  it,  with  the  power  of  enjoying,  in  safety  and  tranquillity, 
their  natural  rights,  and  the  blessings  of  life." 

The  Social  Compact.  —  "  The  body-politic  is  formed  by  a  volun- 
tary asssociation  of  individuals.  It  is  a  social  compact,  by  which 
the  whole  people  covenants  with  each  citizen,  and  each  citizen  with 
the  whole  people,  that  all  shall  be  governed  by  certain  laws  for  the 
common  good." 

"We,  therefore,  the  people  of  Massachusetts,"  acknowledging  the 
goodness  of  God,  "in  affording  us"  "an  opportunity"  "of  entering 
into  an  original,  explicit,  and  solemn  compact  with  each  other,  and  of 
forming  a  new  constitution  of  civil  government  for  ourselves  and  pos- 
terity, ...  do  agree  upon,  ordain,  and  establish  the  following  dec- 
laration of  rights,  and  frame  of  government,  as  the  constitution  of 
the  commonwealth  of  Massachusetts." 

A  constituting  or  establishing  of  the  body-politic,  more  formal  and 
explicit,  if  possible,  is  the  following,  in  part  second  of  the  constitution  : 

"  The  people  inhabiting  the  territory  formerly  called  the  province 
of  Massachusetts  Bay,  do  hereby  solemnly  and  mutually  agree  with 
each  other,  to  form  themselves  into  a  free,  sovereign,  and  independent 
body-politic,  or  state,  by  the  name  of —  the  commonwealth  of  Massa- 
chusetts." 

This  great  exemplar  of  liberty  here  declares  most  emphatically,  that 
the  phrases  "  the  people,"  "  the  body-politic,"  "  the  state,"  and  "  the 


CONCLUSIVE  EVIDENCE.  61 

commonwealth,"  mean  the  same,  as  to  political  existence,  and  ca- 
pacity for  self-government.  It  should  be  ever  kept  in  mind  that 
"  the  people  "  are  "  the  state,"  and  "  the  state  "  "  the  people." 

No  Sovereignty  in  Government  —  all  Functionaries  Agents. — 
"  All  power  residing  originally  in  the  people,  and  being  derived  from 
them,  the  several  magistrates  and  officers  of  government,  vested  with 
authority,  whether  legislative,  executive,  or  judicial,  are  their  substi- 
tutes and  agents,  and  are  at  all  times  accountable  to  them." 

The  State  can  change  Government  at  Will.  —  "  Government  is 
instituted  for  the  common  good  :  for  the  protection,  safety,  prosperity 
and  happiness  of  the  people.  Therefore  the  people  alone  have  an  in- 
contestable, inalienable,  and  indefeasible  right  to  institute  government, 
and  to  reform,  alter,  or  totally  change  the  same,  when  their  protec- 
tion, safety,  prosperity,  and  happiness  require  it." 

The  State  to  remain  Sovereign  over  Government.  —  Upon  declar- 
ing the  above,  she  seemed  to  stop  —  deeply  reflect  —  gather  strength 
of  will  and  expression  —  and  imperially  declare;  as  if  to  prevent  for- 
ever the  possibility  of  agency  swelling  to  sovereignty,  and  rising  above 
the  states  that  establish  it :  "  that  THE  PEOPLE  of  this  commonwealth 
have  the  sole  and  exclusive  right  of  governing  themselves  as  a  free, 
SOVEREIGN,  and  independent  STATE,  and  do,  and  forever  hereafter  shall, 
exercise  and  enjoy  every  power,  jurisdiction,  and  right,  which  is  not, 
or  may  not  hereafter  be,  by  them,  expressly  delegated  to  the  united 
states  of  America,  in  Congress  assembled."  [The  above  italics  are  the 
author's.] 

In  conformity  with  this  declaration  that  "  the  people  of  this  com- 
monwealth "  have  the  "exclusive  right  of  governing  themselves"  "as 
a  sovereign  state; "  and  that  they  "  will  forever  exercise"  every  power 
which  is  not  "by  them  delegated"  to  the  associated  states;  Massachu- 
setts most  carefully  puts  her  whole  adult  male  population  on  a  war 
footing;  and  commands  her  governor  to  use  them,  to  "kill,  slay, 
and  destroy,"  all  such  persons  (including  of  course  federal  ones) 
as  "  shall  attempt  the  destruction,  invasion,  detriment,  or  annoyance 
of  this  commonwealth ; "  she  exacts  an  oath  of  allegiance  from 
all  officials,  military  or  other ;  and  punishes  a  violation  of  the  same 
(i.  e.  treason),  with  death  !  —  all  of  which  will  be  fully  shown  further 
along. 

New  York  testifies  idem  sonans.  —  In  1776,  she,  as  a  provincial 
body-politic,  joined  twelve  others,  in  declaring  their  independence. 
Each  was  represented  by  her  own  deputies,  and  they  were  thus  able 
to  co-act  in  congress.  Whatever  was  done,  was  by  a  concurrence  of 
individual  wills. 

In  1777,  her  first  constitution  was  established,  containing  the  fol- 


62  A  GENERAL  VIEW. 

lowing  absolute  declarations  of  sovereign  right  —  principles  essential 
to  liberty,  and  the  same  yesterday,  to-day,  and  forever ! 

Considering  herself  to  be  the  supplanter  of  British  sovereignty,  she 
declared  as  follows  :  "  All  power  whatever  therein,  [i.  e.  in  the  state  of 
New  York]  hath  reverted  to  the  people  thereof;  and  this  convention 
hath,  by  their  suffrages  and  free  choice,  been  appointed  and  authorized 
to  institute  and  establish  a  government,  .  .  .  calculated  to  secure  the 
rights  and  liberties  of  the  good  people  of  this  state.  .  .  . 

"1st.  This  convention,  therefore,  in  the  name,  and  by  the  authority 
of  the  good  people  of  this  state,  doth  ordain,  determine,  and  declare : 
that  "  no  authority  shall,  on  any  pretence  whatever,  be  exercised  over 
the  people  or  members  of  this  state,  but  such  as  shall  be  derived  from, 
or  granted  by  them." 

She  began  the  century  recently  closed,  with  this  declaration ;  and, 
though  her  fundamental  law  has  been  several  times  reconstructed, 
the  declaration  stands  now  !  and  it  will  stand  forever !  for  no  author- 
ity but  hers  is  ever  to  be  exercised  on  her  soil ! 

She  further  declares,  in  her  present  organic  law  of  government,  that 
"the  sovereignty  and  jurisdiction  of  this  state  extend  to  all  places 
within  the  boundary  thereof,  .  .  .  but  the  extent  of  such  jurisdiction, 
over  places  that  have  been  or  may  be  ceded  to  the  united  states,  shall 
be  qualified  by  the  terms  of  such  cession."  [Const.  N.  Y.]  * 

She  also  declares  it  to  be  "  the  duty  of  the  Governor,  and  all  sub- 
ordinate officers,  to  maintain  and  defend  her  sovereignty  and  jurisdic- 
tion." [N.  Y.  Rev.  Stat.,  Ch.  L,  Tit.  2.] 

She  also  declares  as  follows,  concerning  the 

Lordship  of  the  Soil,  or  Eminent  Domain.  —  "  The  people  of  this 
state,  in  their  right  of  sovereignty,  are  deemed  to  possess  the  original 
and  ultimate  property  in,  and  to,  all  lands  within  the  jurisdiction  of 
this  state ;  and  all  lands,  the  title  of  which  shall  fail  from  a  defect  of 
heirs,  shall  revert  or  escheat  to  the  people."  [Const.  N.  Y.,  Art.  I., 
Sect.  2.] 

Virginia  expresses  it  as  follows  : 

"All  escheats,  penalties,  and  forfeitures,  heretofore  going  to  the 
king,  shall  go  to  the  commonwealth  "  [Const.  Va.] ;  and  Judge  Kent 
states  the  American  doctrine  to  be,  that  "  the  state  steps  in  place  of 
the  feudal  lord,  by  virtue  of  its  sovereignty,  as  the  original  and  ulti- 
mate proprietor  of  all  the  lands  within  its  jurisdiction."  [All  the 
above  italics  are  mine.] 

1  On  this  subject,  Massachusetts  declares  as  follows:  "The  sovereignty  and  jurisdic- 
tion of  the  commonwealth,  extend  to  all  places  within  the  boundaries  thereof;  subject 
only  to  t<uch  rights  of  concurrent  jurisdiction,  as  have  been,  or  maybe  granted  over  any 
places  ceded  by  the  commonwealth  to  the  united  states."  [See  Rev.  Stat.  of  Mass.,  ed. 
1836,  p.  56.] 


CONCLUSIVE  EVIDENCE.  63 

Federal  Sites.  —  The  treatment  of  Uncle  Sam  by  these  high  and 
mighty  potentates,  is  quite  consistent  with  their  imperial  words. 

Massachusetts  and  New  York  grant  to  the  united  states  (not  to  the 
nation  or  government,  but  to  the  said  states)  sites  for  arsenals,  forts, 
navy-yards,  light-houses,  post-offices,  etc.,  relying  on  their  solemnly 
plighted  faith,  not  only  to  guaranty  and  secure  the  states,  in  being 
and  acting  as  republics,  or  absolutely  self-governing  peoples,  but  to 
use  the  said  sites  solely  for  the  defence  "  and  welfare  "  of  said  states. 
The  sites  of  forts  Warren,  Lafayette,  Delaware,  Monroe,  Moultrie,  and 
others,  are  acquired  and  held  by  the  united  states,  from  the  respective 
states  in  which  they  are  situated,  on  conditions  such  as  the  following, 
in  the  act  ceding  the  use  and  jurisdiction  of  the  site  of  the  Brooklyn 
Navy-yard  :  "  The  united  states  are  to  retain  such  use  and  jurisdic- 
tion, so  long  as  said  tract  shall  be  applied  to  the  defence  and  safety  of 
the  city  and  port  of  New  York,  and  no  longer  ["  defence  and  safety 
of  the  said  state,  and  no  longer,"  are  the  words  in  the  Watervleit 
arsenal  cession].  .  .  .  But  the  jurisdiction  hereby  ceded,  and  the  ex- 
emption from  taxation  herein  granted,  shall  continue,  in  respect  to 
said  property,  and  to  each  portion  thereof,  so  long  as  the  same  shall 
remain  the  property  of  the  united  states,  and  be  used  for  the  purposes 
aforesaid,  and  no  longer"  [see  also  statutes  of  Mass.,  June  17,  1800; 
June  20,  1816 ;  April  23,  1847 ;  April  21,  1848 ;  May  4,  1853  :  Stat. 
Pa.,  April  18,  1795;  Feb.  1,  1796:  Stat.  Va.,  March  1,  1821;  and 
Stat.  S.  C.,  December  19,  1805.]  There  are  over  50  of  these  acts  in 
the  statutes  of  Massachusetts,  and  over  150  in  those  of  New  York. 

Summing  up  the  Testimony.  —  Let  us  now  analyze  and  reduce  to 
averments  of  fact,  the  statement  of  these  august  witnesses.  They 
show  conclusively : 

1.  That  "  all  power  is  inherent  in  the  people  "  of  the  state  ;  and  that 
the   phrases,  the    "sovereign  and    independent    body-politic,"    "the 
commonwealth,"  "  the  state,"  and  "  the  people,"  are  all  used  in  one 
and  the  same  declaration  as  synonymous.     And,  to  preclude  doubt, 
Massachusetts  redeclares  her  sovereignty  with  still  greater  emphasis, 
as  follows  :  "  The  people  of  this  commonwealth  have  the  sole  and  exclu- 
sive right  of  governing  themselves  as  a  free,  sovereign,  and  independent 
state." 

2.  That  no  power  ever  goes  out  of  the  state,  except  by  delegation  ; 
that  all  power  belongs  to  the  state  as  much  after  delegation  as  before  ; 
and  that  delegated  powers  must  necessarily  be  used,  for  the  state,  by 
her  "  substitutes  and  agents." 

3.  That  all  the  powers  in  the  general  government  are  delegated  by, 
and  derived  from,  the  "  sovereign  and  independent  bodies-politic,"  — 
that  is  to  say,  "  the  commonwealths  "  or  "  the  states  "  —  "  the  people  " 


64  A  GENERAL   VIEW. 

having  no  political  existence,  or  capacity  for  political  action,  except  as 
such  "  bodies-politic,"  or  "  states."  Said  DANIEL  WEBSTER  :  "No  such 
thing  as  sovereignty  of  government,"  "is  known  in  North  America." 
"With  us,  all  power  is  with  the  people."  [Speech  of  1833.] 

4.  That   the  said  "people,"  "body-politic,"  "commonwealth,"  or 
"state"   have   an  "inalienable  and   indefeasible  right   to   institute, 
reform,  alter,  or  totally  change  government,"  whenever  they  think 
proper. 

5.  That  no  authority  can  be  exercised  in  the  state  but  that  derived 
from  the  people  thereof,  i.  e.  from  "  the  sovereign  body-politic,"  "  the 
commonwealth,"  "  the  state." 

The  Constitution  is  Law  in  a  State  by  her  Will.  —  It  follows,  as 
will  be  shown  more  fully  hereafter,  that  the  general  government  or  its 
functionaries  enter  Massachusetts  or  New  York  solely  by  her  permis- 
sion ;  that  they  command  or  control  persons  or  things  in  her  territory 
solely  for  her,  and  by  virtue  of  her  authority  ;  and  that  "  the  united 
states  "  (not  the  government,  except  as  an  agent  or  instrument  of  the 
united  states)  hold  use  and  jurisdiction  of  sites  for  forts,  navy-yards, 
etc.  from  her,  for  the  sole  purpose  of  her  and  her  sisters'  defence  and 
safety,  under  her  grant,  and  subject  to  her  conditions. 

The  fact  of  state  supremacy  will  be  more  plain,  if  we  note  and 
weigh  the  only  act  which  makes  the  federal  constitution  law  in  Massa- 
chusetts. These  are  the  ordaining  words  :  "  The  convention,  in  behalf 
of  the  people  of  the  commonwealth  of  Massachusetts,  do  assent  to,  and 
ratify  the  constitution."  New  York,  and  all  the  other  original  states, 
ordained  the  supreme  law  in  the  same  way. 

The  truth  is,  the  states  are  sovereign,  and  all  the  institutions  and 
rulers  of  the  union  are  subordinate.  The  states  are,  as  Hamilton  said, 
the  "  essential  component  parts  of  the  union  "  of  states,  or  "  the  united 
states ; "  and  the  federal  government  is  merely  the  creation,  the  in- 
strument, and  the  subject  of  the  states,  —  the  declaration  of  the  Phila- 
delphia Convention  of  1866,  that  "the  Government"  has  "absolute 
supremacy,"  and  that  both  people  and  states  are  alike  allegiant  to  it, 
being  hardly  entitled  to  respect  or  refutation.  Still  less  worthy  of 
notice  —  though  of  far  higher  origin  —  is  that  queer  figment  or  fanciful 
notion  of  Webster  and  Curtis,  as  to  the  social  compact  forming  the 
people  of  the  united  states  into  a  state. 

Exposure  of  the  Fallacy  of  a  New  Social  Compact.  —  Nay,  more, 
this  theory  is  so  egregious  a  mistake,  that  ridicule  is  only  disarmed 
by  pity,  while  argument  turns  away  with  scorn.  The  very  object  of 
forming  men  into  society,  and  giving  them  a  collective  capacity  to  act, 
is  government.  Hence,  in  sending  deputies  to  devise,  in  holding  con- 
ventions to  consider  and  ratify,  and  in  electing  agents  to  administer, 


CONCLUSIVE  EVIDENCE.  65 

the  general  constitution,  the  states  were  exercising  the  God-given 
right  of  self-government,  and  doing  only  natural  and  functional  acts ; 
and  were  not  dissolving  themselves,  or  yielding  their  sovereignty. 
Accordingly,  we  find  no  hint  in  all  American  history,  tending  to  show 
that  the  people,  or  the  states,  were  in  1787  and  1788,  forming  society; 
while  all  history,  and  all  the  records  of  the  country  show  that  they 
were  establishing  government  for  preformed  and  pre-existent  societies. 
So  much  for  the  Webster  and  Curtis  social  compact,  and  involuntary 
union  ! 

Again,  these  societies  had,  by  successful  revolt,  changed  themselves 
from  provinces  to  "  free,  sovereign,  and  independent  states  ;  "  that  is  to 
say,  they  had  gained  the  right  of  self-government,  that  peculiar  thing 
that  alone  distinguishes  a  state  from  a  province  or  county.  These 
states  had  this  right  in  1787,  and  then  voluntarily  acted  with  and 
according  to  it,  mch  with  her  own  separate  will,  in  her  own  separate 
time,  and  through  her  own  separate  convention,  ratifying,  and,  as  to 
herself,  ordaining  the  constitution.  When  did  each  state  lose  the 
great  right  referred  to1?  When  did  the  voluntary  union  become  an 
involuntary  one  1 

Politically  the  People  exist  and  act  as  a  State.  —  The  states, 
and  their  absolute  individuality,  being  stubborn  facts,  that  will  not 
"down"  at  any  "bidding"  whatever,  no  one  can  argue  correctly  on 
these  subjects,  who  does  not  start  with  a  conception  of  them  as 
"  moral  persons,"  each  with  mind  and  will,  and  only  capacitated  to 
act  on  political  matters,  as  such  persons,  and  through  such  minds. 

Says  VATTEL  (p.  14)  :  "A  state  or  political  society  is  a  moral  per- 
son, inasmuch  as  it  has  an  understanding  and  a  will,  of  which  it  makes 
use  for  the  conduct  of  its  affairs,  and  is  capable  of  obligations  and 
rights."  Again  (p.  1):  "The  authority  of  all  over  each  member, 
essentially  belongs  to  the  body-politic  or  state."  Blackstone  and 
Montesquieu  teach  the  same  idea. 

Said  .WILLIAM  H.  SEWARD,  at  Auburn,  N.  Y.,  October  20,  1865  : 
"  This  absolute  existence  of  the  states,  which  constitute  the  republic, 
is  the  most  palpable  of  all  the  facts  which  the  American  statesman 
has  to  deal  with.  .  .  .  The  states  were,  before  the  American  union 
was.  .  .  .  Our  federal  republic  forever  must  exist,  through,  not  the 
creation,  but  the  combination,  of  these  several  free,  self-existing,  stub- 
born states.  .  .  .  They  are  living,  growing,  majestic  trees,  whose  roots 
are  widely  spread  and  interlaced  within  the  soil,  and  whose  shade 
covers  the  earth." 

As  will  be  seen,  all  history  and  all  the  fathers  show  that  the  com- 
monw^alths  must  be  kept  in  mind,  in  all  reasoning  on  political  sub- 
jects, as  "  the  most  palpable  of  all  the  facts  the  American  statesman 

5 


66  A  GENERAL  VIEW. 

has  to  deal  with."  They  must  be  kept  in  mind  as  "  the  parties  to 
the  compact;"  the  members  of  "the  confederacy;"  the  "essential 
component  parts  of  the  union  ; "  and  "  the  sovereigns  "  of  their  respec- 
tive territories.  These  are  the  phrases  of  that  other  great  son  of 
New  York,  Alexander  Hamilton,  used  in  reference  to  the  present 
system. 

The  Stumbling-block  of  the  "  Expounders."  —  The  Massachusetts 
school  are  loth  to  admit  "  the  people  "  and  "  the  sovereign  body-politic 
or  state  "  to  be  one  and  the  same,  and  that  the  collective  people  in 
question  form  a  "  moral  person,"  and  must  act  as  such  in  government. 
They  seem  to  think  that  the  existence  and  action  of  distinct  and  free 
political  minds,  make  the  union  "  a  rope  of  sand ; "  and  they  are 
unwilling  to  admit  that  the  said  association  depends  on  moral  cohesive 
force,  instead  of  coercive  power.  They  simply  fail  to  "rise  to  the 
height  of  the  great  argument  "  of  God  and  our  fathers,  —  that  the 
people  are  capable  of  self-government,  and  that  the  union  is  one  of 
pre-existent  and  absolutely  distinct  commonwealths,  uniting  them- 
selves voluntarily,  on  the  grounds  alone  of  amity  and  mutual  in- 
terest. 

The  "  Sacred  Ties  "  according  to  Washington.  —  GEORGE  WASH- 
INGTON, in  his  letter  to  R.  H.  Lee,  August  22,  1785,  says  :  "  There  is 
nothing  which  binds  one  country  or  state  to  another,  but  interest : 
without  this  cement,  the  Western  inhabitants  can  have  no  predilec- 
tion for  us,  and  a  commercial  connection  is  the  only  tie  we  can  have 
upon  them." 

Two  years  afterwards,  viz.,  July  19,  1787,  he  wrote  to  the  same  : 
"  Till  you  get  low  down  the  Ohio,  I  conceive  that  it  would  be  to  the 
interest  of  the  inhabitants  thereof  to  bring  their  produce  to  our  ports  ; 
and  sure  I  am,  there  is  no  other  tie  by  which  they  will  long  form  a 
link  in  the  chain  of  federal  union." 

About  five  years  afterward,  and  about  three  years  after  the  federal 
system  had  gone  into  effect  under  his  administration,  viz.,  August  26, 
1792,  he  wrote  to  Hamilton,  counselling  mutual  forbearance,  concilia- 
tion, and  accommodation,  "  and  such  healing  measures  as  may  restore 
harmony  to  the  discordant  members  of  the  union."  "  Without  these," 
continued  he,  "  I  do  not  see  how  the  union  of  the  states  can  much 
longer  be  preserved." 

These  extracts,  and  the  whole  Farewell  Address,  promulgated  in  1796, 
show  his  idea  to  have  been,  that  amicable  feeling  and  mutual  interest 
were  principal  among  "  the  sacred  ties  that  bind  together  the  various 
parts."  After  showing  the  sentimental  cohesion,  he  speaks  thus  :  "  But 
these  considerations,  however  powerfully  they  address  themselves  to 
your  sensibilities  [italics  mine],  are  greatly  outweighed  by  those  which 


CONCLUSIVE  EVIDENCE.  67 

apply  more  immediately  to  your  interest ; "  and  then  he  goes  on  to 
enumerate  the  many  grounds  of  interest,  which  should  motive  the 
people  to  preserve  the  union.  [See  Farewell  Address.] 

It  is  well  here  to  say,  that  in  all  Washington's  political  writings, 
the  pith  of  which  will  be  found  in  two  subsequent  chapters  [Part  III. 
Chs.  X.  and  XI.],  he  nowhere  hints  at  that  coercive  preservation  of  the 
union,  which  the  expounders  of  to-day  claim  to  be  the  duty  of  "  the 
government,"  but  which  the  framers  of  the  constitution  carefully  con- 
sidered, severely  reprobated,  and  rigidly  excluded,  as  will  hereafter  be 
most  conclusively  shown. 

The  "  Sacred  Ties  "  according  to  Jackson  and  Burke.  —  Instead 
of  saying,  as  by  some  he  is  quoted,  "  The  union  must  and  shall  be 
preserved,"  ANDREW  JACKSON  says  :  "  But  the  constitution  cannot  be 
maintained,  nor  the  union  preserved,  in  opposition  to  public  feeling, 
by  the  mere  exertion  of  the  coercive  powers  of  government :  the  foun- 
dations must  be  laid  on  the  affections  of  the  people,  in  the  security  it 
gives  to  life,  liberty,  and  property  in  every  quarter  of  the  country, 
and  in  the  fraternal  attachments  which  the  citizens  of  the  several 
states  bear  to  one  another  as  members  of  one  political  family." 

EDMUND  BURKE'S  grand  voice  sounded  consonantly  and  appositely 
in  the  British  Parliament :  "  My  hold  on  the  colonies,"  said  he,  "  is 
the  close  affection  that  grows  from  common  names,  from  kindred 
blood,  from  similar  privileges  and  equal  protection.  'These  are  ties 
which,  though  light  as  air,  are  strong  as  iron.  Let  the  colonies 
always  keep  the  idea  of  their  civil  rights  associated  with  your  govern- 
ment, they  will  cling  and  grapple  to  you,  and  no  power  under  heaven 
will  be  able  to  tear  them  from  your  allegiance."  But,  continued  he, 
"  the  cement  is  gone,  the  cohesion  is  loosened,  and  everything  has-- 
tens  to  decay  and  dissolution,"  if  they  are  deprived  of  their  privileges 
and  subjected  to  wrong  and  oppression. 

The  Union  is  only  Voluntary  Engagements.  —  These  great  men 
do  but  .express  the  truth,  that  none  but  voluntary  ties  of  union  can 
exist  among  associate  republics ;  for,  when  involuntariness  supervenes, 
the  republic  ceases.  In  the  case  before  us,  the  associates  guaranty  to 
each  commonwealth  that  she  shall  continue  to  be  and  act  as  a  repub- 
lic, i.e.  govern  herself.  [Const.  Art.  IV.  §  4.]  If  she  be  kept  tied  to 
anything,  be  it  tree,  wall,  or  union,  against  her  will,  she  is  not  free, 
or  republican. 

If  the  safety  and  interest  of  the  parties  be  secured  and  justice  done 
to  them  in  the  union,  contentment  and  amity,  the  elements  of  "  do- 
mestic tranquillity,"  are  sure  to  follow.  And,  if  the  American  repub- 
lics remain  as  they  were,  —  the  primum  mobile  of  all  government, 
ruling  collectively  in  federal  matters,  and  severally  in  local ;  if  the  idea 


68  A  GENERAL  VIEW. 

of  an  involuntary  union  be  abandoned ;  if  mutual  good-will  and 
mutual  justice  prevail,  so  that  the  commonwealths  desire  to  remain 
united ;  and,  finally,  if  the  general  governing  authority  faithfully  do 
that,  and  no  more,  which  the  functionaries  of  it  are  all  sworn  to  do,  — 
the  "  essential  component  parts  of  the  union,"  as  Hamilton  called 
them,  will  never  wish  to  be  sundered,  but  will  remain  united  by  ties 
which  are  "  strong  as  iron,"  "  though  light  as  air  !  " 

"  Union  and  Liberty,  now  and  forever ! "  —  In  the  beginning  of 
this  second  century  of  "  union  and  liberty,"  —  that  is,  of  federal  lib- 
erty, —  we  should  take  a  new  —  or  rather  retake  the  old  —  departure. 
Liberty  dwells,  and  must  ever  dwell,  not  in  the  league  or  union,  and  not 
in  the  constitution  of  government,  but  —  in  the  people  as  republics ; 
and  the  people,  collectively  and  individually,  must  feel,  use,  and  enjoy  it. 
This  is  what  God  and  our  fathers  intended ;  what  Massachusetts  and 
New  York  so  imperially  declare ;  and  what,  under  their  lead,  we 
should  patriotically  strive  for,  now,  henceforth,  and  forever ! 

Let  us  preserve  the  Commonwealths.  —  Self-preservation  is  alike 
the  first  law  of  nature,  and  the  first  duty  of  those  to  whom  the 
Almighty  has  given  a  sentient  existence.  Men  have  an  individual 
being,  and,  in  society,  a  corporate  one,  —  both  of  God.  And  when 
the  commonwealth  exercises  its  mind,  or,  in  the  last  resort,  its  physi- 
cal force,  in  preserving  itself  and  its  freedom,  it  is  acting  precisely 
.according  to  the  above  law  and  duty,  and  the  members  are  bound  by 
the  social  compact  to  obey  her.  They  thus  individually  and  collec- 
tively exercise  the  right,  and  discharge  the  duty  of  self-preservation ; 
and  at  this  ever-to-be-remembered  epoch,  the  highest  moral  obliga- 
tion devolves  on  Massachusetts,  to  say  nothing  of  New  York,  to  take 
the  lead  again,  and  promulgate  her  sacred  and  glorious  principles  of 
liberty.  And  henceforth,  every  new  state,  or  old  one,  requiring  a 
new  constitution,  should  copy  that  of  Massachusetts,  as  to  social  com- 
pact, bill  of  rights,  and  even  form  of  government.  Expounders  can 
then  no  longer  dispute,  hide,  or  pervert  the  truth. 

Let  all  declare  the  true  principles  of  Liberty.  —  And  let  all  the 
commonwealths  determine  to  be  such,  from  this  time  forward ;  and 
let  them  respectively  declare  in  the  language  of  the  great  exemplar  — 
the  Old  Bay  State  :  — 

That  the  people  of  this  commonwealth  have  the  sole  and  exclusive 
right  of  governing  themselves  as  a  free,  sovereign,  and  independent  state  ; 
and  they  will  forever  exercise  every  power  and  right,  which  may  not  be 
by  them  expressly  delegated  to  the  united  states,  assembled  in  congress  ; 

That  all  power,  residing  originally  in  the  people,  and  being  derived 
from  them,  all  officers  of  government  are  their  substitutes  and  agents, 
and  are  at  all  times  accountable  to  them ; 


CONCLUSIVE   EVIDENCE.  69 

And,  finally,  that  the  people  of  the  commonwealth  alone,  have  an  in- 
alienable and  indefeasible  right  to  institute  government,  and  to  reform, 
alter,  or  totally  change  the  same,  whenever  they  think  their  safety  and 
happiness  require  it. 

The  States  are  now  provincialized.  —  Before  July  4,  1776,  the 
nascent  states  were  provinces,  their  wills  being  controlled,  and  they 
kept  in  dominion,  by  a  power  exterior  to  themselves,  and  over  their 
wills.  At  that  time,  they  became  "free,  sovereign,  and  independent" 
parties  to  a  voluntary  and  a  happy  union.  In  1876,  we  found  them 
again  subject  to  an  exterior  will,  in  all  matters  deemed,  by  that  will, 
necessary  and  proper.  The  mind  and  power  that  ruled  at  Washing- 
ton, claimed  and  enforced  "  absolute  supremacy."  Sovereign  wills  in 
states  had  existed  and  acted  in  forming  the  present  union  :  they  then 
existed  no  more !  In  what,  said  Lincoln,  are  our  states  better  than 
counties  1  Did  he  realize  that  they  were  subjugated ;  and  that  "  the 
government  "  had  changed  itself  from  agency  to  sovereignty —  "  the  very 
ivay,"  said  Burke  —  and  it  cannot  be  quoted  too  often  —  "  in  which 
all  the  free  magistracies  of  the  world  have  been  perverted  from  their 
purposes  ?  " 

Invocation.  —  People  of  the  united  states !  let  us  begin  the  new 
century  by  close  adherence  to  the  union  of  our  fathers ;  the  union  of 
sovereign  and  independent  commonwealths  ;  the  voluntary  union  that 
Lee  and  Davis,  and  Seward  and  Chase,  were  educated  to  believe  in, 
and  revere  !  Let  the  fasces  be  always  lowered  before  the  supreme 
sovereignty  of  the  people.  Spurn  the  idea  of  "  absolute  supremacy  of 
government"  in  a  republic !  Ever  regard  your  general  constitution  of 
it,  as  federal,  and  based  on  the  commonwealths  of  people,  —  the  rock 
of  original  power.  If  you  leave  it  on  the  shifting  sands,  "  great  will 
be  the  fall  of  it ! "  and  in  the  ensuing  night  and  sorrow  of  despotism, 
you  will  come 

"To  think  — as  the  damned  haply  think  of  the  heaven 
They  once  had  in  their  reach  — that  you  might  have  been  free," 

May  God  preserve  and  bless  the  American  commonwealths,  and 
may  their  motto  ever  be  :  "  UNION  AND  LIBERTY  !  NOW  AND  FOREVER  ! 

ONE  AND  INSEPARABLE  !  " 


PART  II. 
FEDERALIZATION. 


THE  two  most  consoling  principles  which  political  experience  has  yet  brought 
to  light,  are  those  on  which  we  have  founded  our  constitutions.  I  mean  repre- 
sentative democracy  and  the  FEDERALIZING  OF  STATES. 

JOEL  BARLOW. 


PART  II. 


UNIVERSITY 


CHAPTEK  I. 
THE  ACTORS  — THEIR  MOTIVES  AND  PURPOSES. 

THE  thirteen  states  or  commonwealths  of  America  that  united  their 
strength  to  achieve  independence ;  and  afterwards  federated  to 
establish  a  general  government,  and  secure  their  statehood  and  free- 
dom ;  were  so  many  "moral  persons"  (as  Vattel  calls  them),  distinct 
in  existence  —  distinct  in  body —  and  distinct  in  mind  and  will.  Each 
had  its  own  name,  geography,  people,  social  organization,  and  political 
authority. 

When,  in  1787,  these  bodies  proposed  to  associate  themselves  in  a 
"  more  perfect  union  "  and  to  establish  a  "  more  efficient  general  gov- 
ernment," it  was  perfectly  obvious  that  they  could  only  act,  in  doing 
so,  through  their  respective  wills,  as  they  had  done  in  their  previous 
association. 

By  their  successful  revolt,  they  became  sovereigns  in  place  of  Great 
Britain,  ipso  facto,  changing  themselves  from  provinces  to  states,  or 
commonwealths. 

These  bodies  of  people  were  organized  and  capacitated  to  act,  polit- 
ically, as  individuals.  Each  had  its  own  mind,  with  the  character- 
istics and  modes  of  action  that  the  mind  of  the  natural  person  has ; 
to  wit,  perceptive  faculties,  reasoning  powers,  judgment  and  will,  — 
a  convention  being  the  organ  for  ascertaining  and  expressing  such 
will.  This  governing  will  must  survive  its  making  of  a  constitution  ; 
as  otherwise  it  cannot  command  and  enforce  obedience  on  its  sub- 
jects ;  or  reform,  change,  or  abolish  its  work,  if  subsequent  experience 
show  it  to  be  defective,  harmful,  or  unpromotive  of  the  desired  ends. 
These  political  beings  act,  each  with  its  own  mind,  and,  of  right, 
consider  and  decide  all  governmental  questions  ;  for  each  is  a  republic 
or  self-governing  people,  which  must  provide  for  its  own  defence  and 
welfare,  and  settle  for  itself,  directly  or  indirectly,  all  questions  of 
interest,  policy,  or  principle,  as  well  as  of  right  and  duty. 


74  FEDERALIZATION. 

At  the  epoch  mentioned,  these  states  were  considering  the  subject 
of  a  permanent  federal  system,  which  should  "  provide  for  the  com- 
mon defence,  and  promote  the  general  welfare  "  of  themselves,  —  that 
is  to  say,  of  "  the  people  "  that  constituted  them. 

In  September,  1786,  in  pursuance  of  a  call  upon  the  states,  "com- 
missioners "  from  the  commonwealths  of  New  York,  New  Jersey,  Penn- 
sylvania, Delaware,  and  Virginia,  met  at  Annapolis,  to  consider  a 
commercial  policy  for  the  union;  but  as  only  five  of  the.  thirteen 
states  appeared,  they  contented  themselves  with  a  recommendation, 
that  a  convention  of  commissioners  of  states  should  be  held  at  Phila- 
delphia, in  May,  1787,  "to  devise  suck  further  provisions,  as  shall  .  .  . 
render  the  constitution  of  the  federal  government  adequate  to  the  exigen- 
cies of  the  union."  [I.  Ell.  Deb.  116.] 

In  appendix  C  hereof,  will  be  found  extracts  from  all  the  commis- 
sions of  the  deputies  of  the  states  to  the  convention  of  1787,  showing 
the  universal  idea  to  be,  the  "  uniting  of  the  sentiments  and  councils 
of  all  the  states,"  in  changing  the  old  "  federal  constitution,"  as  it  was 
called,  into  such  new  one  as  "  will  be  adequate  to  the  exigencies  of  the 
federal  government,  and  the  preservation  of  the  union,"  when  "agreed 
to  in  congress,  and  confirmed  by  the  several  states."  [For  full  cre- 
dentials see  I.  Ell.  Deb.  126.] 

Statehood  to  remain  Intact.  —  It  will  be  seen  that,  throughout 
all  the  deliberations  up  to  the  adoption,  the  prevailing  aim  and  under- 
standing was,  that  the  states  should  keep  their  statehood  and  sove- 
reignty intact,  and  should  accomplish  their  purpose  by  delegating,  but 
not  surrendering  or  alienating  powers. 

WILLIAM  PATTERSON,  of  New  Jersey,  made  a  statement  in  the  con- 
vention of  1787,  that  shows  most  clearly  the  principle  that  finally 
prevailed.  After  saying  that  all  the  commissions  of  the  delegates 
required  them  to  revise,  alter,  and  amend  the  articles  of  union,  he 
proceeded  as  follows  :  "  Can  we,  on  this  ground,  form  a  national  gov- 
ernment 1  I  fancy  not.  Our  commissions  give  a  complexion  to  the 
business ;  and  we  cannot  suppose  that  when  we  exceed  the  bounds  of 
our  duty,  the  people  will  approve  our  proceedings.  We  are  met  here 
as  the  deputies  of  thirteen  independent  sovereign  states,  for  federal 
purposes.  Can  we  consolidate  their  sovereignty,  and  form  one  nation, 
and  annihilate  the  sovereignties  of  our  states,  who  have  sent  us  here 
for  other  purposes  ?  .  .  . 

"  But  it  is  said  that  this  national  government  is  to  act  on  individuals, 
and  not  on  states ;  and  cannot  a  federal  government  be  so  framed  as 
to  operate  in  the  same  way?  It  surely  may.  I,  therefore,  declare 
that  I  never  will  consent  to  such  a  system.  Myself  or  my  state  will 
never  submit  to  tyranny  or  despotism."  [I.  Ell.  Deb.  403.] 


THE  ACTORS  — THEIR  MOTIVES  AND  PURPOSES.    75 

We  shall  see,  in  our  progress,  that  both  in  the  convention,  and 
before  the  people,  the  federalists  completely  overcame  the  nationalists. 

We  shall  see  statehood  completely  preserved  —  the  pre-existent  un- 
changed states  being  named  in  the  compact,  and  provided  for,  to  act, 
with  their  respective  wills,  in  government,  and  future  amendment. 

We  shall  see  that  the  constitution  was  to  be  ratified,  and  thereby 
ordained  and  established,  by  separate  but  associating  commonwealths, 
acting  through  their  respective  conventions ;  all  history  and  the  sol- 
emn records  proving  this  action  (and  no  other)  to  have  given  life  and 
vigor  to  the  constitution. 

We  shall  see  that  the  government  was  to  be  endowed  with  power 
solely  by  the  states,  not  to  act  on  and  over  the  states,  but  on  their 
citizens  and  subjects ;  that  coercion  of  states  was  considered  as  war, 
and  prohibited ;  and  that  the  new  plan  was  intended  to  be  merely 
"  the  federal  government  of  these  states,"  and  the  "  delegation  "  of 
an  "extensive  trust"  —  as  Washington  wrote  to  the  congress,  "by 
unanimous  order  of  the  convention,"  which  had  laboriously  devised 
the  plan,  and  must  be  supposed  to  have  thoroughly  understood  their 
own  work.  [See  I.  Ell.  Deb.  305.] 

In  the  next  ensuing  chapters,  however,  my  purpose  is  to  show  that 
the  states  in  1788,  federalized  themselves,  "to  form  a  more  perfect 
union  "  of  states  than  their  previous  one  ;  and  to  institute  a  stronger 
and  "more  efficient  federal  government"  than  the  one  of  1778;  that 
they  are  the  be-all  and  the  end-all  of  the  system ;  and  that  the  second 
union  is  a  more  pronounced  confederacy  than  the  first. 

The  Chief  Aims  of  the  States.  —  They  desired  to  be  united, 
because  they  were  neighbors,  on  the  same  expanse  of  territory ;  were 
of  common  origin,  and  similar  political  organization ;  held  the  same 
principles  arid  views  of  government ;  and  finally  had  the  same  needs, 
—  in  considerable  part,  as  to  home,  and  altogether,  as  to  foreign  policy. 

Their  leading  aims  and  ideas  were  : 

1.  "To  unite  in  one  ligament  the  strength  of  thirteen  states,"  — 
to  use  the  words  of  Chancellor  Pendleton,  in  the  Virginia  ratifying 
convention. 

2.  To  enable  themselves  to  act  as  one  nation,  or  power,  in  foreign 
affairs. 

3.  For  economy,  convenience,  and  good  neighborhood,  they  sought 
to  establish  an  agency  for  governmental  affairs  that  were  common  to 
aU. 

4.  To  close  up  as  many  as  they  could  of  possible  points  of  contro- 
versy among  themselves,   as  neighboring  powers  or  states.      Those 
settled  ceased  to  be,  while  those  unsettled  remained  international. 

5.  That  each  state  should  exclusively  govern  in  home  affairs. 


76  FEDERALIZATION. 

6.  That  statehood  and  the  sovereignty  of  the  states,  should  be 
preserved  unqualifiedly  and  forever! 

The  Principal  Changes  contemplated  were  the  following : 

1.  A  complete  government  was  to  be  provided  for  in  the  new  plan  ; 
while  the  old  was  only  a  legislature,  without  co-ordinate  executive 
and  judicial  institutions,  and  without  any  independent  power  to  effect- 
uate its  so-called  laws.1 

2.  The  new  government  was  to  operate  directly  on  the  individual 
subjects,  having  authority  delegated,  by  the  sovereigns,  for  that  pur- 
pose, while  the  old  could  neither  coerce  states  nor  people. 

3.  The  unlimited  power  to  levy  and  collect  taxes,  for  providing  for 
the  common  defence,  etc.,  was  to  be  in  the  new,  but  was  not  in  the 
old  government. 

4.  Commerce,  the  currency,  and  some  other  subjects  of  less  though 
great  importance,  were  to  be  put  in  the  new  project,  though  they 
were  not  under  the  old  government. 

These  were  the  most  essential  changes ;  and  they  were  devised  with 
great  deliberation,  study,  and  care,  by  the  most  eminent  and  able 
citizens,  subjects,  and  deputies  of  the  aforesaid  commonwealths.  And 
to  give  the  new  institution  a  higher  and  more  majestic  sanction,  than 
that  of  the  old,  the  communities  of  people  themselves,  through  their  con- 
ventions, and  not  their  ordinary  agencies,  the  legislatures,  were  to 
adopt  it,  so  as  to  have  the  fabric  "  rest  on  the  solid  basis  of  the  con- 
sent of  the  people"  [Federalist,  22.] 

In  fine,  the  states  federalized,  and  did  not  nationalize  themselves. 
The  former  would  necessarily  be  done  by  equal  sovereigns,  while  the 
latter  would  make  them  counties  or  provinces  of  a  nation,  remanding 
them  to  their  British  condition. 

All  history  shows  that  to  each  state  the  question  was  put :  Will 
you  adopt  this  instrument,  and  become  a  party  1  Thirteen  finally 
answered  yes  —  each  expressing  her  own  absolutely  uncontrolled  will 
—  by  ratifying  through  their  respective  conventions ;  and  became  the 
thirteen  united  states  —  thirteen  united  sisters  —  thirteen  united 

1  The  power  of  congress  to  make  laws  on  the  subjects  confided  to  it,  implied,  to  some 
extent,  the  power  of  providing  executive  and  judicial  authority  to  effectuate  them ;  but 
the  agents  provided  for,  were  necessarily  the  agents  of  an  agency;  and  the  states  neither 
promptly  complied  with  the  federal  requirements,  nor  allowed  the  needed  full  and  final 
enforcement  of  them  on  their  citizens.  Hence  the  great  desideratum  was  to  establish  a 
new  executive  and  judiciary  —  not  subordinate  to  congress,  but  co-ordinate  with  it  —  de- 
riving their  existence  and  power  directly  from  the  said  creators  —  the  governing  people, 
and,  with  congress,  possessing  the  same  agential  and  coercive  authority  over  the  indi- 
vidual people  that  the  state  governments  have. 

Thus  was  American  federal  government  made  to  "  rest  on  the  solid  basis  of  the  con- 
sent [i.e.  will]  of  the  people,"  instead  of  the  consent  or  will  of  the  people's  legislatures 
[See  Federalist,  22.] 


THE  ACTORS  — THEIR  MOTIVES  AND  PURPOSES.    77 

sovereigns  —  thirteen  united  commonwealths  —  thirteen  united  re- 
publics. 

Preliminary  Remarks  on  Federalization.  —  I  will  now  proceed  to 
show  how  each  state  as  a  body-politic  gave  to  the  federal  compact  its 
only  validity  within  her  borders ;  how  the  thirteen  states  devised  and 
created  the  federal  system  as  a  mode  and  agency  for  exercising  their 
self-government  in  their  general  affairs,  and  considered  the  constitu- 
tion of  it  as  an  addition  to  their  respective  fundamental  laws ;  how 
the  powers  delegated  were  trusts  to  be  exercised  by  their  elected  sub- 
jects, who  collectively  form  the  federal  government ;  and  how  the  said 
compact,  and  the  government  under  it,  were  to  be,  and  remain  in 
necessary  subordination  to  the  associated  states.1 

All  this  will  be  shown  by  a  full  and  careful  exhibition  of  the  acts  of 
the  states  themselves,  and  the  contemporaneous  explanations  of  the 
fathers,  who  represented  and  acted  for  them.  We  shall  see  that  the 
great  design  of  the  states  was  (as  Joel  Barlow  expressed  it),  to  "  feder- 
alize  "  themselves,  and  to  avoid  consolidation ;  to  make  a  federal  and 
to  avoid  a  consolidated  government ;  in  other  words,  to  remain  in  the 
necessary  condition  of  allied  sovereigns,  governing  themselves — jointly 
by  a  federal  government,  and  severally  by  state  governments. 

It  will  be  seen  that  each  of  all  the  thirteen  states,  of  her  own 
motion,  in  her  own  time,  by  her  own  law,  and  in  the  plenitude  of  her 
own  sovereign  will,  held  a  convention,  and  therein  carefully  deliberated 
and  finally  decided  as  a  state,  independently  of  the  authority  of  the 
other  states  of  the  so-called  nation,  and  of  all  the  world,  to  "  assent  to 
and  ratify  "  the  federal  constitution,  i.  e.  to  become  a  party  thereto, 
and  to  give  the  said  constitution,  and  the  government  it  provided  for, 
existence  and  jurisdiction  within  her  borders.  Inferentially,  Article 
VII.  of  the  compact,  conclusively  proves  all  this,  for  it  declares  that 
"  the  ratification  "  of  nine  states  shall  suffice  for  "  the  establishment  of 
this  constitution  between  the  states  so  ratifying  the  same  ; "  but  this 
is  not  enough,  for  I  wish  to  show  the  perversions  to  be  not  only  base- 
less, but  sins  against  light  and  knowledge. 

1  The  first  edition  of  this  work  was  published  in  England  in  the  summer  of  1865,  and 
largely  circulated  in  America;  and  the  second  was  issued  in  New  York,  early  in  1866. 
So  far  as  the  author  knows,  it  was  then  the  only  work  extant,  putting  the  federal  consti- 
tution, in  a  given  state,  on  its  actual  and  only  legal  basis,  as  the  offspring  of  the  will  of 
that  state,  expressed  by  ratification,  through  a  convention. 

Mr.  A.  H.  Stephens'  valuable  and  instructive  work  entitled  "The  War  Between  The 
States,"  Vol.  I.  published  in  1868,  apparently  adopts  the  same  view,  and  gives  mainly 
the  same  evidence  and  arguments.  But  it  must  be  said,  with  due  deference,  that  Mr. 
Stephens  falls  into  the  cardinal  error  of  supposing  sovereignty  to  be  divisible  into 
powers,  and  susceptible  of  delegation  and  reservation;  and  moreover  utters  the  glaring 
fallacy  that  sovereignty  can  be  subject  to  the  powers  it  delegates,  "so  long  as  the  dele- 
gated power  is  unresuined."  These  errors  will  be  duly  noticed. 


78  FEDERALIZATION. 

In  giving  the  history  of  each  state's  action  in  ratifying  the  federal 
compact,  I  shall  quote  her  ordaining  words,  which  are  of  infinite  im- 
portance, as  the  only  expression  of  sovereign  legislative  will,  that  ever 
made  the  constitution  "the  supreme  laiv,"  or  indeed,  any  law  at  all,  in 
any  state.  It  will  be  found  that  the  false  charges  which  well-nigh 
defeated  the  system,  are  identical  with  the  fallacious  expositions  of 
"  the  Massachusetts  school "  in  later  times.  It  will  also  be  seen  that 
though  Dane,  Story,  Webster,  and  Curtis  now  assert  that  a  nation 
was  formed,  the  states  reduced  to  subjection,  and  the  government 
made  sovereign,  all  the  fathers  are  on  record  to  the  contrary,  in  the 
most  direct  and  positive  manner. 

With  the  name  of  each  commonwealth  will  be  given  the  order  and 
date  of  her  ratification,  as  well  as  her  vote  in  convention.  Let  us  first 
take  the  case  of  Massachusetts.  The  italics  in  the  extracts  are  mainly 
my  own ;  where  otherwise  it  will  be  noted. 


CHAPTER  II. 

MASSACHUSETTS  FEDERALIZES  HERSELF. 

THE  SIXTH  TO  RATIFY— VOTE  187  TO  168— DATE  FEB.  7,  1788. 

THOUGH  Massachusetts  was  the  sixth  to  ratify,  her  pre-eminence 
in  making,  as  well  as  the  efficiency  of  her  "  school"  in  afterwards 
destroying,  the  constitution,  and  the  richness  of  her  record  in  material 
for  the  purpose  in  hand,  make  it  advisable  to  present  her  case  first. 
It  will  be  seen  that  her  record  decisively  refutes  the  many  volumes  of 
pretended  constitutional  exposition,  emanating  from  her  sons  and  her 
press ;  and  that  all  her  history  is  opposed  to  the  theory  of  the  "  Mas- 
sachusetts school,"  viz.,  that  "the  people  of  the  united  states,"  are  a 
nation,  i.  e.  one  sovereign  people,  represented  by  a  national  govern- 
ment, which  is  possessed  of  "  absolute  supremacy  "  so  far  as  its  vested 
powers  go,  and  is  the  exclusive  judge  of  the  extent  of  said  authority. 
In  those  days,  she  was  the  stickler,  par  excellence,  for  state  sover- 
eignty ;  took  the  lead  in  demanding  amendments  to  secure  it,  and  had 
a  boasted  influence  to  that  end,  on  the  subsequently  ratifying  states ; 
and  she,  as  will  be  seen,  was  the  very  proposer  of  the  celebrated 
Tenth  Amendment,  which,  as  Samuel  Adams  explained  in  the  con- 
vention—  with  the  assent  of  all — meant  that  "each  state  retains 
her  sovereignty,"  as  well  as  " all  powers  not  delegated"  [II.  Ell.  Deb. 
131.] 

The  Substance  of  the  Objections.  —  The  opposition  charged  that 
the  phrase  in  the  preamble,  "  we  the  people  of  the  united  states  .  .  . 
do  ordain  and  establish  this  constitution,"  coupled  with  the  powers 
given  in  the  instrument,  transmuted  the  pre-existent  states  to  a  nation, 
the  said  states  becoming  fractional  parts,  i.  e.  provinces  or  counties  ; 
that,  as  the  constitution  was  to  be  "  the  supreme  law  of  the  land," 
the  government  was  to  be  a  supreme  power ;  and  that,  as  this  gov- 
ernment was  to  have  the  unlimited  right  of  taxation,  and  the  control 
of  the  militia  for  all  national  purposes,  and  was  itself  to  be  the  judge  of 
the  extent  of  its  powers,  it  followed  that  so  far  as  the  constitution 
went,  "  so  far "  (to  borrow  the  subsequent  phrase  from  Webster) 
"  state  sovereignty  was  effectually  controlled."  It  was  quite  natural 
that  the  people  should  be  doubtful  and  apprehensive,  and  that  much 


80  FEDERALIZAT10N. 

honest  as  well  as  wrongful  opposition  should  be  made,  for  the  federal 
convention  had  deliberated  in  secret,  and  the  new  system  had  trans- 
pired suddenly,  while  its  seeming  form  was  unwarranted.  The  question 
was  whether  the  sovereignty  of  the  states  and  the  subordination  of  the 
government,  were  preserved  in  the  new  system ;  and  the  great  fears 
were,  that  the  instrument  consolidated  the  states  into  a  nation  ;  or 
established  a  government  that  could  control  them,  and  do  away  with 
their  statehood  and  sovereignty. 

Everybody  opposed  to  Consolidation.  —  Washington,  under 
"  the  unanimous  order  of  the  convention,"  reported  the  new  project 
to  congress  in  a  letter,  dated  September  17,  1787,  which  contains 
the  following  little  phrase  :  "in  all  our  deliberations  on  this  subject, 
we  kept  steadily  in  our  view  .  .  .  the  consolidation  of  our  union." 
Literally  this  phrase  does  not  speak  of  the  states ;  but  it  is  the  union 
of  them  that  is  to  be  consolidated,  that  is  to  say,  increased  in  utility, 
efficiency,  and  strength,  made  more  solid  and  strong,  and  more  likely 
to  endure.  And,  as  will  now  be  shown  from  her  debates,  this  pre- 
cisely accords  with  what  her  statesmen  said,  in  her  ratifying  conven- 
tion, in  defence  of  the  proposed  system.  One  quotation  will  suffice 
to  present  the  charge  as  made  in  the  convention.  Hon.  Mr.  Dench 
thought  "  the  words,  '  we,  the  people,'  in  the  first  clause  ordaining 
the  constitution,"  and  the  eighth  section  of  the  first  article,  "  would 
produce  a  consolidation  of  the  states,  and  the  moment  it  begins,  a  dis- 
solution of  the  state  governments  commences."  [II.  Ell.  Deb.  98,  99.] 

GENERAL  BROOKS  immediately  replied  that  the  idea  that  this  con- 
stitution would  produce  "consolidation"  of  the  states,  or  "dissolu- 
tion" of  their  governments,  was  "ill-founded —  or,  rather,  a  loose  idea. 
In  the  first  place,  the  congress  under  this  constitution  cannot  be  or- 
ganized without  repeated  acts  of  the  legislatures  of  the  several  states ; 
and,  therefore,  if  the  creating  power  is  dissolved,  the  body  to  be 
created  cannot  exist.  In  the  second  place,  it  is  impossible  that  the 
general  government  can  exist,  unless  the  governments  of  the  several 
states  are  forever  existing ;  as  the  qualifications  of  the  electors  of  the 
federal  representatives  are  to  be  the  same  as  those  of  the  electors  of 
the  most  numerous  branch  of  the  state  legislatures.  The  powers  to 
be  given  to  congress  amount  only  to  a  consolidation  of  the  strength 
of  the  union."  [II.  Ell.  Deb.  99.]  This  is  the  same  idea  that  was 
expressed  by  the  president  of  the  Virginia  convention,  as  the  object  of 
union,  viz.,  "to  bind  in  one  ligament  the  strength  of  thirteen  states." 
And  all  the  fathers  constantly  kept  it  in  view,  that  the  states  were 
combining  their  strength  for  defence,  as  well  as  joining  for  con- 
venience, economy,  and  efficiency  in  the  general  government  of  their 
citizens. 


MASSACHUSETTS  FEDERALIZES   HERSELF.  81 

COLONEL  VARNUM  said  the  purpose  of  the  constitution  "  was  only 
a  consolidation  of  strength ;  "  and  that  the  states  were  not  to  be  con- 
solidated by  it,  and,  moreover,  that  the  congress  provided  for  had  no 
right  to  affect  them.  "It  is,"' said  he,  "  the  interest  of  the  whole  to 
confederate  against  a  foreign  enemy."  [II.  Ell.  Deb.  78.] 

HON.  JAMES  BOWDOIN  not  only  denied  that  there  was  danger  of 
consolidation  in  the  system,  but  he  spoke  of  it  as  "&  confederacy, 
which  would  give  security  and  permanency  to  the  several  states;" 
that  is  to  say,  preserve  them.  [II.  Ell.  Deb.  129.]  JUDGE  SUMNER 
argued  that  there  was  no  danger  that  "  the  delegation  of  these  great 
powers  would  destroy  the  state  legislatures,  ...  for  the  general  gov- 
ernment depended  on  them  for  its  very  existence."  [Ibid.  64.]  HON. 
MR.  SEDGWICK  said  that  "  if  he  thought  this  constitution  consolidated 
the  union  of  the  states,  he  should  be  the  last  man  to  vote  for  it." 
[II.  Ell.  Deb.  77.  See  also  Massachusetts  Centiriel,  Feb.  2, 1788.] 

In  the  small  volume  of  "debates"  of  the  ratifying  convention, 
published  by  the  state  early  in  the  present  century,  at  page  316  is  to 
be  found  the  following  account  and  extracts.  MR.  SHURTLEFF,  refer- 
ring to  General  Washington's  letter  above  mentioned,  objected  that 
"  the  convention  said  they  aimed  at  a  consolidation  of  the  union." 
MR.  PARSONS,  afterwards  the  Chief  Justice  of  Massachusetts,  said 
there  was  "  a  distinction  between  a  consolidation  of  the  states,  and  a 
consolidation  of  the  union''1  MR.  JONES  said  that  " the  word  ' con- 
solidation '  had  different  ideas."  "  Different  metals  melted  into  one 
mass,"  he  said,  illustrated  one,  and  "several  twigs  tied  into  one 
bundle,"  the  other. 

HON.  MR.  DANA,  afterwards  Chief  Justice  of  Massachusetts,  said, 
in  the  same  debate,  that  "  if  this  government  was  a  consolidation,  in- 
stead of  a  confederation,  he  should  think  the  number  [of  representatives] 
too  small.  But,  as  it  is  federal,  and  we  have  our  own  governments 
to  support,  the  expense  [of  a  larger  number]  would  be  too  great." 
[Memoirs  of  Chief  Justice  Parsons,  p.  93.]  GEORGE  CABOT,  writing 
to  Judge  Parsons,  February  28, 1788,  said  that  one  of  the  great  fears  of 
the  people  was,  that  the  constitution  makes  "  such  a  consolidation  of 
the  states  as  will  dissolve  their  governments,"  but  that  the  equal 
suffrage  in  the  senate  "  is  security  that  no  measures  will  ever  pass 
tending  in  the  smallest  degree  to  consolidation."  [See  Memoirs  of 
Judge  Parsons;  see  also  Amory's  Life  of  Governor  Sullivan,  p. 
534.] 

FISHER  AMES,  the  great  Massachusetts  statesman  and  orator,  said  : 
"  No  argument  against  the  new  plan  has  made  a  deeper  impression 
than  this,  that  it  will  produce  a  consolidation  of  the  states.  This  is 
an  effect  which  all  good  men  deprecate.  The  state  governments  are 

6 


82  FEDERALIZATION. 

essential  parts  of  the  system.  The  senators  represent  the  sovereignty 
of  the  states.  They  are  in  the  quality  of  ambassadors  of  the  states. 
...  A  consolidation  of  the  states  .  .  .  would  subvert  the  consti- 
tution. Too  much  provision  cannot  be  made  against  consolidation. 
The  state  governments  represent  the  wishes  and  feelings  and  local 
interests  of  the  people."  He  further  said  that  they  would  "  afford 
shelter  against  the  abuse  of  federal  power,"  and  that  "the  system 
would  be,  in  practice  as  in  theory,  a  federal  republic."  [II.  Ell.  Deb. 
46.]  Though  other  extracts  could  be  produced,  these  will  suffice.  I 
have  piled  up  this  mass  of  proof  to  make  Massachusetts  refute  her 
own  sons ;  to  expose  their  offence  in  suppressing  or  garbling  her 
record  to  get  excuses  for  violating  her  sacred  faith ;  and  to  prevent 
further  confidence  in  them  as  to  these  subjects.  But  this  is  not  all ; 
for  the  record  further  shows  the  direct  opposite  of  consolidation,  to 
have  been  the  solemn  understanding  on  which  Massachusetts  ratified. 
Let  us  see. 

The  Severalty  and  Sovereignty  of  the  States.  —  Her  wise  men 
in  the  convention  gave  to  her,  many  and  most  emphatic  assurances  on 
this  point.  I  have  just  quoted  Fisher  Ames  as  saying,  "the  senators 
represent  the  sovereignty  of  the  states."  [II.  Ell.  Deb.  46.]  JUDGE 
PARSONS  said  the  senate  was  designed  "to  preserve  the  sovereignty  of 
the  states."  [See  his  "Memoirs"  by  his  son,  p.  98.]  CHRISTOPHER 
GORE,  for  many  years  one  of  her  leading  statesmen,  said  :  "The  sen- 
ate represents  the  sovereignty  of  the  states."  [II.  Ell.  Deb.  18.]  GOV- 
ERNOR BOWDOIN  said  the  states  are  "  distinct  sovereignties''1  [II.  Ell. 
Deb.  129.]  GEORGE  CABOT,  afterwards  one  of  her  federal  senators, 
said  the  "senate  is  a  representation  of  the  sovereignty  of  the  individ- 
ual states."  [II.. Ell.  Deb.  26.]  MR.  THACHER  said  :  "The  senate  are 
elected  by  the  legislatures  of  the  different  states,  and  represent  their 
sovereignty?  [II.  Ell.  Deb.  145.]  SAMUEL  ADAMS  said  that,  under 
the  new  constitution,  "  each  state  retains  her  sovereignty''1  [II.  Ell. 
Deb.  131.]  Other  similar  quotations  might  be  given,  but  it  is  not 
necessary,  as  none  of  the  fathers  dissented,  and  as  the  then  existing 
federal  compact,  and  the  constitution  of  Massachusetts,  both  contained 
assertions  of  absolute  state  sovereignty,  which  the  fathers  neither 
sought  to  nor  could  go  behind. 

"We,  the  people,"  means  Massachusetts.  —  The  phrase,  "the 
people,"  was  then  used  in  a  general  sense,  as  it  is  now ;  for  the  people 
of  all  the  states  were  alike  in  political  condition,  had  common  senti- 
ments, and  aimed  at  self-government,  not  only  as  societies,  such  as 
they  then  were,  but  as  united  societies,  which  they  were  then  seeking 
to  become.  Their  contemplated  self-federalization  was  for  conven- 
ience, economy,  and  united  strength.  "  The  people,"  then,  only  ex- 


MASSACHUSETTS  FEDERALIZES   HERSELF.  83 

isted,  and  had  capacity  for  political  action,  as  states ;  and,  as  these 
bodies  were  equal,  they  must  have  been  respectively  sovereign.  Con- 
sistently with  this  idea,  the  organic  laws  of  the  states  generally 
declared  that  "all  power  is  inherent  in  the  people," —  the  state  mak- 
ing the  declaration  referring  to  herself,  of  course,  for  she  made  it  inde- 
pendently, and  had  no  right  or  reason  to  make  it  for  any  other  people. 
Wherefore,  we  shall  find  the  phrase,  when  technically  and  constitution- 
ally used,  to  mean  the  people  of  a  state,  or  the  people  of  the  states, 
considered  as  sovereignties.  The  records  of  all  the  states  show  this, 
as  will  be  seen.  I  now  proceed  to  give  the  conclusive  proof  Massa- 
chusetts affords.  Her  own  record  shows  her  to  be  as  autocratic  as 
the  Czar  in  decreeing  her  institutions,  state  and  federal,  as  well  as  in 
her  present  political  status.  When  her  people,  as  a  separately  and 
thoroughly  organized  colony,  assumed  independence,  and  "  by  a  social 
compact"  to  use  their  own  words,  formed  themselves  into  a  state, 
they  solemnly  preambled  as  follows  :  Thanking  God  for  the  opportu- 
nity of  deliberately  entering  into  "an  original,  explicit,  and  solemn 
compact  with  each  other,"  and  "forming  a  new  constitution  of  civil 
government  for  themselves  and  posterity,"  they  declare  that  "  We,  the 
people  of  Massachusetts,  ...  do  agree  upon,  ordain,  and  establish  the 
following  declaration  of  rights  and  frame  of  government  as  the  con- 
stitution of  the  commonwealth  of  Massachusetts."  And  it  in  no  wise 
qualifies  the  sovereign  character  of  the  said  "  We,  the  people  "  that 
they  establish  a  federal  government,  for  this  must  exist  by  their  crea- 
tion, 'hold  their  powers  in  trust,  and  hence  remain  subordinate  to 
them.  Indeed,  the  same  fundamental  law  that  I  have  just  quoted 
from,  declares  that  "  the  people  of  the  commonwealth  have  the  sole  and 
exclusive  right  of  governing  themselves  as  a  free,  sovereign,  and  inde- 
pendent state"  and  that  they  "  forever  hereafter  shall  exercise  and 
enjoy  every  power,  jurisdiction,  and  right,  which  is  not  .  .  .  by  them 
expressly  delegated  to  the  united  states  in  congress  assembled."  [See 
the  present  constitution  of  Massachusetts,  Part  I.  Art,  5.] 

"What  her  Statesmen  meant  by  "We,  the  People."  —  We  see, 
from  the  above  fundamental  law,  that  her  delegates,  agents,  and  ser- 
vants, whether  in  the  federal  or  state  convention,  were  absolutely 
bound  to  mean  her  alone,  when  they  spoke  or  wrote  the  phrase,  "  We, 
the  people ;  "  for,  collectively,  they  were  her  mouth-piece,  and  were 
only  authorized  to  speak  the  voice  of  her  power.  Let  us  see  what 
they  say.  I  shall  quote  somewhat  copiously,  as  the,  debate  is  very 
instructive,  and  as  Massachusetts  completely  destroys  the  theory  of 
"  the  Massachusetts  school." 

DR.  CHARLES  JARVIS,  an  able  member  of  the  convention,  said  : 
"Under  what  authority  are  we  acting*?  .  .  .  We  are  convened  in 


84  FEDERALTZATION. 

right  of  the  people,  as  their  immediate  representatives,  to  execute  the 
most  important  trust  which  it  is  possible  to  receive."  "  He  considered 
the  constitution  as  an  elective  democracy,  in  which  the  sovereignty 
still  rested  in  the  people,"  i.e.  remained  where  it  had  been,  —  in  the 
state.  He  further  spoke  of  the  convention  as  "  the  whole  people  of 
Massachusetts  assembled  by  their  delegates"  and  said:  We  are  "at 
liberty  to  resolve  in  what  form  this  trust  shall  be  executed."  "  We 
have  a  right  to  receive  or  reject  the  constitution."  [II.  Ell.  Deb. 
151.] 

SAMUEL  STILLMAN,  a  prominent  member  of  the  convention,  after 
showing  that  the  president,  the  senate,  and  the  house  of  representa- 
tives are  to  be  elected  by  or  for  "  the  people  of  the  several  states"  con- 
tinued :  "  It  will  be  their  own  fault,  then,  if  they  [i.e.  the  people  of 
a  given  state]  do  not  choose  the  best  men  in  the  commonwealth.  Who 
are  congress,  then  1  They  are  ourselves,  —  the  men  of  our  choice,  in 
whom  we  confide,  whose  interest  is  inseparably  connected  with  our 
own."  [II.  Ell.  Deb.  167.] 

HON.  CHARLES  TURNER  said  :  "  I  know  great  powers  are  necessary 
to  be  given  to  congress,  but  I  wish  they  may  be  well  guarded."  I 
know  not  whether  this  convention  will  vote  a  ratification  of  this  con- 
stitution or  not.  If  they  should  do  it,  and  have  the  concurrence  of  the 
other  states,"  etc.  II.  Ell.  Deb.  32,  171.] 

JAMES  BOWDOIN,  afterwards  governor,  said:  "All  power  is  derived 
mediately  or  immediately  from  the  people,  in  all  the  constitutions. 
This  is  the  case  with  the  federal  constitution.  The  electors  of  repre- 
sentatives to  the  state  governments  are  electors  of  representatives  to 
the  federal  government."  Speaking  of  the  power  of  imposing  taxes, 
duties,  etc.,  he  said  :  "  The  states  empower  congress  to  raise  money." 
He  further  said  :  "Shall  we,  then,  we  of  this  state,  who  are  so  much  in- 
terested in  this  matter,  deny  them  that  power,  —  a  power  so  essential 
to  our  political  happiness  1  .  .  .  Whether  such  power  be  given  by  the 
proposed  constitution,  it  is  left  with  the  conventions  of  the  several  states, 
and  with  us,  who  compose  one  of  them,  to  determine."  [II.  Ell.  Deb. 
81  ;  see  also  Ibid.  125,  et  seq.~\ 

THEOPHILUS  PARSONS,  afterwards  the  noted  Chief  Justice,  char- 
acterized the  new  political  arrangement  as  "a  government,  to  be  ad- 
ministered for  the  common  good,  by  the  servants  of  the  people,  vested 
with  delegated  powers,  by  popular  elections  at  stated  periods.  The 
federal  constitution  establishes  a  government  of  this  description,  and 
in  this  case  the  people  divest  themselves  of  nothing  ;  the  government 
and  the  powers  which  congress  can  administer,  are  the  mere  result  of 
a  compact  made  by  the  people  with  each  other  for  their  common  defence 
and  general  welfare."  He  speaks  of  the  powers  of  government  being 


MASSACHUSETTS  FEDERALIZES   HERSELF.  85 

taken  by  the  people  from  their  state  governments,  and  put  in  the  fed- 
eral one.  Of  course  the  people  of  the  state  alone  could  do  this. 
[See  II.  Ell.  Deb.  88,  et  seq.'] 

JOHN  HANCOCK,  the  president  of  the  convention,  as  well  as  governor 
of  the  state,  spoke  of  "the people  of  this  commonwealth'"  as  having  the 
absolute  right  to  reject  or  ratify  "  the  proposed  form  of  government." 
And  he  considered  the  federal  constitution  as  "  the  delegating "  of 
power  by  "  the  people  to  men  who  were  dependent  on  them  frequently 
for  election."  [II.  Ell.  Deb.  175.] 

We  see,  then,  that  by  "  We,  the  people,"  in  the  preamble  of  the 
federal  compact,  the  Massachusetts  fathers  meant,  and  could  but 
mean,  the  people  of  the  states,  as  commonwealths  ;  and  that  they  recog- 
nized the  said  states  as  the  sole  sources  of  power,  and  as  the  compact- 
ing and  ordaining  parties  to  a  "  union  of  states,"  formed  for  "  the 
common  defence  and  general  welfare."  They  unquestionably  consid- 
ered the  states  as  sovereign  republics,  or  self-governing  peoples,  form- 
ing a  federal  system,  or  republic  of  republics. 

The  Fear  of  losing  Statehood.  —  The  advocates  of  the  new  plan 
conclusively  showed  that  the  precious  integrity  and  sovereignty  of 
the  states  were  untouched  by  it ;  but  the  public  fear  could  not  be 
thus  allayed.  The  fact  was  unappreciated,  even  if  known,  that  the 
federal  convention  had  repudiated  and  excluded  from  the  constitution 
all  ideas  of  controlling  and  coercing  states ;  and  had  only  given  the 
federal  agency  legal  jurisdiction  and  power  of  coercion  over  citizens,  — 
such  power,  of  course,  coming  from,  belonging  to,  and  being  exercised 
for,  the  states.  It  was  owing  to  the  aforesaid  vague  and  general  fear, 
that  a  bill  of  rights,  and  other  limitations  of,  and  safeguards  against, 
federal  power  were  generally  demanded,  —  with  what  result  on  Massa- 
chusetts, we  shall  now  see. 

She  proposes  the  Tenth  Amendment.  —  SAMUEL  ADAMS,  one  of 
the  great  revolutionary  leaders  of  Massachusetts,  had,  with  many 
others,  gone  into  the  convention  evidently  determined  to  defeat  the 
constitution,  —  his  unfavorable  first  impression  of  that  instrument 
being  indicated  by  the  following  extract  from  a  letter  to  Richard 
Henry  Lee,  dated  December  3,  1787  :  "I  stumble  at  the  threshold. 
I  meet  with  a  national  government,  instead  of  a  federal  union  of 
sovereign  states.  ...  If  the  several  states  are  to  become  one  entire 
nation,  under  one  legislature,  its  powers  to  extend  to  all  legislation, 
and  its  laws  to  be  supreme  and  control  the  whole,  the  idea  of  sover- 
eignty in  these  states  must  be  lost."  If  he  and  other  leading  men 
had  remained  under  this  impression,  the  federal  plan  would  have 
been  spurned  with  unanimity,  for  the  ideas,  which  subsequently  be- 
came Websterian  dogmas,  had  in  those  days  no  friends  and  advocates; 


86  FEDERALIZATION. 

and  the  people  of  the  country  were  all  determined  that  there  should 
be  no  consolidation  of  the  states,  and  that  state  integrity  and  sover- 
eignty should  be  absolutely  preserved. 

Late  in  the  session,  when  everything  foretokened  overwhelming 
defeat,  Gov.  HANCOCK,  representing  the  leading  advocates  of  the  sys- 
tem, came  forward  with  "  conciliatory  propositions,"  the  substance  of 
which  was,  that  Massachusetts  should,  at  the  time  of  her  ratification, 
propose  to  her  sisters  several  amendments,  to  secure  the  integrity 
of  the  states  and  the  subordination  of  the  new  government,  —  the 
most  important  of  them  being  the  one  which,  on  her  motion,  as  it 
were,  subsequently  became  the  tenth.  When  he  proposed  these 
amendments,  he  gave  his  assent  to  the  constitution,  "  in  full  confi- 
dence that  the  said  amendments  would  soon  become  a  part  of  the 
system  ; "  and  said  that,  as  they  were  "  calculated  to  give  security  and 
ease  alike  to  all  the  states,  he  thought  all  would  agree  to  them." 
[II.  Ell.  Deb.  175.]  The  effect  of  these  "conciliatory  propositions'' 
can  be  best  seen  from  the  response  of  Samuel  Adams.  Said  he : 
"  Your  Excellency's  first  proposition  is  '  that  it  be  explicitly  declared 
that  all  powers  not  expressly  delegated  to  Congress,  are  reserved  to 
the  several  states  to  be  by  them  exercised.'  This  appears  to  my  mind 
to  be  a  summary  of  a  bill  of  rights,  which  gentlemen  are  anxious  to 
obtain.  ...  It  is  consonant  with  the  second  article  in  the  present 
confederation,  that  each  state  retains  its  sovereignty  .  .  .  and  every 
power  .  .  .  which  is  not  .  .  .  expressly  delegated  to  the  united 
states  in  congress  assembled."  [II.  Ell.  Deb.  131.]  Confidence 
(afterwards  justified  by  the  event)  being  felt  that  these  amendments 
would  be  adopted  ;  and  the  great  opposition  leader  expressing  him- 
self satisfied,  and  determined  to  vote  yes,  the  opponents  yielded  suf- 
ficiently to  allow  ratification  by  the  very  small  majority  of  19,  in  a 
membership  of  355  votes,  the  firm  and  formidable  minority  still 
vaguely  fearing  that  the  instrument  might  be  susceptible  of  the  very 
meaning  that  Dane,  Story,  and  Webster  afterwards,  by  perversion, 
put  upon  it. 

The  Amendment  a  Truism,  though  Useful.  —  But  for  the  under- 
standing that  this  amendment  at  least  would  be  added  to  the  com- 
pact, the  system  would  certainly  have  been  defeated,  though  in 
reality  the  said  amendment  could  make  no  change,  it  being  a  mere 
truism,  or,  at  best,  a  gloss,  and  only  tantamount  to  the  declaration 
that  all  powers  not  given  are  reserved,  —  a  self-evident  proposition. 
Still  the  general  understanding  that  such  an  amendment  was  to  be 
made,  bore  a  large  and  useful  part  in  satisfying  the  people  of  several 
of  the  states  that  their  sovereignty  was  preserved  in  the  system,  while 
"  powers  "  only  were  delegated  or  trusted  to  agents.  Unquestionably 


MASSACHUSETTS  FEDERALIZES   HERSELF.  87 

this  was  the  unanimous  sentiment  and  sine  qua  non  of  Massachusetts. 
Her  idea  was  that,  by  virtue  of  her  sovereignty,  which  was  essentially 
characteristic  and  inalienable  (as  her  constitution  then  declared,  and 
as  indeed  it  declares  now),  she  delegated  powers  just  as  a  principal 
would  to  his  agent,  to  be  used  for  her  benefit,  and  still  belonging  to 
her,  and  subject  to  her  resumption  at  will ;  and  ex  abundante  cautela, 
she  declared  that  all  not  delegated  were  reserved.  Nay,  more,  the 
whole  agency  was  necessarily  composed  of  citizens  and  subjects  of  the 
allied  sovereigns,  elected  by  them.  The  wide  distinction  between  the 
sovereign  right  of  delegating  authority,  and  the  powers  imparted  by 
delegation,  was  afterwards  forcibly  expressed  by  Samuel  Adams  in  a 
letter  to  Richard  Henry  Lee,  dated  July  4,  1789,  as  to  the  object  and 
importance  of  this  very  amendment.  It  is,  said  he, "that  the  good 
people  may  clearly  see  the  distinction  —  for  there  is  a  distinction  — 
between  the  federal  powers  vested  in  congress,  and  the  sovereign  au- 
thority belonging  to  the  several  states,  which  is  the  palladium  of  the 
private  and  personal  rights  of  the  citizens."  He  said  further,  he  hoped 
for  some  judicious  amendments,  "  so  that  the  whole  people  may,  in 
every  state,  contemplate  their  own  safety  on  solid  grounds,  and  the 
union  of  the  states  be  perpetual."  [This,  and  a  like  letter  to  El- 
bridge  Gerry,  are  in  III.  Life  of  S.  Adams.] 

Now  while  Hancock,  Adams,  Ames,  Parsons,  Bowdoin,  and  others, 
were  incessantly  denying  consolidation,  and  assuring  the  state  that 
her  sovereignty  was  to  be  absolute  in  the  new  system,  why  did  not 
some  of  the  Danes,  Storys,  Websters,  and  Curtises  of  that  day,  get 
up  and  remark  :  "  Oh,  no,  it  is  not  the  states,  but  the  nation  that  is 
sovereign ;  it  is  the  people  of  the  states  in  the  aggregate,  that  now 
ordain  this  constitution ;  and  therein  they  establish  a  distribution  of 
their  powers  between  this,  their  general  government,  and  their  several 
state  governments ;  and  so  far  as  this  constitution  goes,  '  so  far  state 
sovereignty  is  effectually  controlled'  "]  Suppose  the  great  men  I  have 
quoted  had,  arguendo,  uttered  these  Websterian  dogmas,  would  a 
single  vote  have  been  obtained  1  But  no  such  idea  could  have  been 
felt  by  anybody.  Why  1  Because  Massachusetts,  at  that  moment, 
had  a  standing  declaration  in  her  organic  law  —  as  well  as  in  the  then 
existing  u  federal  constitution  "  —  that  she  was  a  "  sovereign,  free,  and 
independent  state  ; "  and  she  then  was,  in  the  precise  character  indi- 
cated by  these  superlative  and  unambiguous  words,  in  convention, 
determining  her  will  —  independently  of  all  the  world  —  as  to  a  fed- 
eration for  herself  and  other  agreeing  states,  and  a  general  govern- 
ment for  their  people ;  and,  in  that  precise  character,  she  was  then 
and  there  "  delegating "  —  not  sovereignty,  but  —  "powers  "  to  "  dele- 
gates," "  representatives,"  "  substitutes,"  "  agents,"  "  servants,"  "  trus- 
tees," etc.,  as  they  were  uniformly  called. 


88  FEDERALIZATION. 

The  quotations  I  have  produced  were  dissented  from  by  no  friend 
of  the  constitution ;  they  entirely  contradict  the  utterances  of  the 
Massachusetts  expounders  ;  and  we  can  now  see,  that  a  reader  must 
ask  himself  at  every  line  of  the  record  :  "  Is  this  why  Story,  Webster, 
and  Curtis  never  quoted  from  so  proper  a  source  of  authority  as  the 
debates  of  the  Massachusetts  Ratifying  Convention  1 " 

The  Sole  Ordaining  was  by  Massachusetts.  —  The  convention 
ratified  the  constitution,  as  follows  :  "  In  convention  of  the  delegates 
of  the  people  of  the  commonwealth  of  Massachusetts,  1788.  The 
comaentioii,  having  impartially  discussed  and  fullv  considered  the 
constitution  for  the  united  states  of  America,  reported  to  congress  by 
the  convention  of  delegates,  .  .  .  and  submitted  to  us,  by  a  resolu- 
tion of  the  general  court  of  the  said  commonwealth,  passed  the  25th 
of  October,  last,  .  .  .  do,  in  the  name,  and  in  behalf,  of  the  people 
of  the  commonwealth  of  Massachusetts,  assent  to  and  ratify  the 
said  constitution  for  the  united  states  of  America." 

Not  in  the  name  and  behalf  of  any  nation,  or  part  of  a  nation,  did 
the  convention  deliberate  upon,  assent  to,  and  ratify  the  instrument, 
but  it  was  for  the  body  of  people  called  Massachusetts,  —  a  body  at 
the  moment  absolutely  sovereign.  As  to  her,  the  passage  of  the  above 
ordinance  completed  the  compact ;  and  it  was  ESTABLISHED  when 
eight  other  states  did  likewise ;  for,  as  Article  VII.  declares,  it  was 
"  RATIFICATION  "  by  nine  states  (i.  e.  nine  ratifications)  that  was  to  be 
"SUFFICIENT  FOR  THE  ESTABLISHMENT  of  this  constitution  between  the 
states  so  ratifying  the  same."  The  federal  compact,  therefore,  re- 
ceived its  whole  life  and  validity  from  Massachusetts  and  the  other 
ratifying  states.  She  and  they  must  have  been  "  the  people  of  the 
united  states  "  that  did  "  ordain  and  establish  the  constitution." 
There  were  no  other  people  in  the  country  than  such  states,  and 
consequently  no  ordainers  but  them.  And  as  to  her  territory 
and  people,  she  alone  gave  it  existence,  and  its  authorities  jurisdic- 
tion, over  them.  It  was  not  "the  people"  as  individual  voters 
that  ratified,  but  "  the  people "  as  states  or  nations.  Massachu- 
setts spoke  her  sovereign  will  through  her  convention,  and  remained 
Massachusetts.  No  institution,  nor  anything  organic,  was  changed. 
Pre-existent  states  simply  made  a  compact,  and  the  federal  system 
became  an  addition  to  the  political  institutions  of  the  country; 
and,  as  it  was  created  by,  it  belonged  absolutely  to,  the  states.  Nay, 
more,  the  administration  of  it  was  to  be  wholly  and  solely  by  the 
subjects  of  the  said  states.  So  that  its  status  is,  and  must  be,  simply 
that  of  a  servant  or  agent.  We  have  found,  then,  in  the  history  and 
records  of  Massachusetts,  one  absolute  sovereign,  acting  in  the  forma- 
tion of  the  federal  system,  or  the  republic  of  republics.  Now  let  us 
look  for  another. 


CHAPTEE  III. 

CONNECTICUT  FEDERALIZES  HERSELF. 

THE  FIFTH  TO  EATIFY  — VOTE  128  TO  40 -DATE,  JAN.  9,  1788. 

THE  record  of  this  state  agrees  precisely  with  that  of  Massachu- 
setts, in  disproving  the  consolidation  of  the  states,  and  proving 
their  most  anxious  wish  to  preserve  their  integrity  and  sovereignty 
in  the  union.  To  establish  this,  I  will  adduce  the  testimony  of  her 
leading  statesmen,  and  conclude  with  her  sovereign  decree  of  ratifica- 
tion, which,  as  to  her,  constituted  the  league  called  the  federal  consti- 
tution. 

What  her  Statesmen  said.  —  A  federation  of  sovereignties  was  the 
object  of  this  state  from  the  beginning,  and  the  great  men  represent- 
ing her  in  the  federal  convention,  considered  it  accomplished  in  the 
constitution  proposed.  Having  carefully  guarded  against  consolida- 
tion, two  of  them,  Ellsworth  and  Sherripan,  reported  to  the  governor 
of  the  state,  that  the  aim  in  the  proposed  system  was  "  to  provide 
for  the  energy  of  government  on  the  one  hand,  and  suitable  checks  on 
the  other,  to  secure  the  rights  of  the  particular  states,  and  the  liber- 
ties and  properties  of  the  citizens.  We  wish  it  may  meet  the  appro- 
bation of  the  several  states,  and  be  a  means  of  securing  their  rights, 
and  lengthening  out  their  tranquillity."  [II.  Ell.  Deb.  491.] 

ROGER  SHERMAN,  one  of  her  greatest  statesmen,  said  :  "  The  govern- 
ment of  the  united  states  being  federal,  and  instituted  by  a  number 
of  sovereign  states  for  the  better  security  of  their  rights,  and  the  ad- 
vancement of  their  interests,  they  may  be  considered  as  so  many 
pillars  to  support  it."  1  He  wrote  to  John  Adams,  July  20,  1789, 
that  "  it  is  optional  with  the  people  of  a  state,  to  establish  any  form 
of  government  they  please,  —  to  vest  the  powers  in  one,  a  few,  OF 
many,  and  for  a  limited  or  unlimited  time ; "  and  "  that  they  may 
alter  their  frame  of  government  when  they  please,  any  former  act 
of  theirs,  however  explicit,  to  the  contrary  notwithstanding."  [VII. 
Life  of  John  Adams,  411,  440.] 

1  The  authority  for  this  extract,  which  T  once  had,  is  lost;  but  the  equivalent  is  in 
VI.  Life  and  Times  of  John  Adams,  440.  Did  he  not  use  these  words  in  the  ratifying 
convention  of  Connecticut  ?  I  have  seen  it  stated  that  he  did. 


90  FEDERALIZATION. 

OLIVER  ELLSWORTH,  afterwards  Chief  Justice  of  the  United  States, 
said  in  the  ratifying  convention  :  "  A  union  is  necessary  for  the  pur- 
poses of  a  national  defence.  United  we  are  strong ;  divided  we  are 
weak."  He  further  speaks  of  "  economy,"  the  keeping  of  peace  among 
the  states,  and  the  preservation  of  commutative  justice  among  them, 
as  among  the  motives  of  union.  In  the  federal  convention  he  moved 
to  expunge  the  word  "  national "  from  the  constitution,  and  substitute 
the  words  "  government  of  the  united  states,"  which  was  agreed  to, 
nem.  con.  In  the  ratifying  convention  of  Connecticut,  he  characterized 
the  union  as  a  "  confederation,"  and  said,  "  the  constitution  does  not 
attempt  to  coerce  sovereign  bodies,  —  states  in  their  political  capacity  ; " 
but  that  the  only  coercion  contemplated,  was  the  same  as  that  of  the 
state  governments,  —  legal  coercion  of  individual  citizens.  [II.  Ell. 
Deb.  186,  197.] 

OLIVER  WOLCOTT,  subsequently  secretary  of  the  treasury,  and  sen- 
ator, said,  in  the  ratifying  convention  :  the  constitution  effectually 
secures  the  states  in  their  several  rights.  It  must  secure  them  for  its 
own  sake ;  for  they  are  the  pillars  which  uphold  the  general  system. 
...  I  am  happy  to  see  the  states  in  a  fair  way  to  adopt  a  constitu- 
tion, which  will  protect  their  rights,  and  promote  their  welfare.  [II. 
Ell.  Deb.  202.] 

GOVERNOR  HUNTINGTON  spoke  of  the  great  movement  as  "the  peo- 
ple meeting  together  by  their  representatives,  and  with  calm  deliber- 
ation framing  for  themselves  a  system  of  government."  [II.  Ell.  Deb. 
200.] 

CHIEF  JUSTICE  LAW  said  :  "  The  whole  is  elective ;  all  dependent  on 
the  people.  The  president,  the  senate,  the  representatives,  are  the 
creatures  of  the  people.  .  .  .  Some  suppose  that  the  general  govern- 
ment, which  extends  over  the  whole,  will  annihilate  the  state  gov- 
ernments. But  consider  that  this  general  government  rests  upon  the 
state  governments  [he  probably  meant  states]  for  its  support.  It  is 
like  a  vast  and  magnificent  bridge,  built  upon  thirteen  strong  and 
stately  pillars.  Now,  the  rulers  who  occupy  the  bridge  cannot  be 
so  beside  themselves  as  to  knock  away  the  pillars  which  support  the 
whole  fabric."  [II.  Ell.  Deb.  201.] 

"  We,  the  People,"  means  Connecticut.  —  It  is  evident  that  she 
ratified  because  her  statesmen  asserted  positively,  and  proved  conclu- 
sively, that  the  "  convention  of  states  "  had  matured  a  federal  system 
instead  of  a  national  one,  and  that  the  integrity  and  sovereignty  of  the 
states,  as  well  as  the  limitation  and  subordination  of  the  "  delegated 
powers," 'were  absolutely  secured.  Her  convention  adopted  the  consti- 
tution by  a  majority  of  88  in  168  members,  —  such  convention  speak- 
ing as  follows  in  the  ratification  :  "  In  the  name  of  the  people  of  the 


CONNECTICUT  FEDERALIZES  HERSELF.  91 

state  of  Connecticut,  -we,  the  delegates  of  the  people  of  the  said 
state,  in  general  convention  assembled,  pursuant  to  an  act  of  the  legis- 
lature in  October  last,  ...  by  these  presents,  do  assent  to,  ratify, 
and  adopt  the  constitution,  reported  by  the  convention  of  delegates 
in  Philadelphia,  ...  for  the  united  states  of  America.  Done  in  con- 
vention this  9th  day  of  January,  A.  D.  1788." 

This  is  the  only  way  the  federal  constitution  got  into  Connecticut, 
and  this  ordinance  is  the  only  law  by  which  it  exists  there  ;  and  yet 
Dane,  Story,  and  Webster  have  ventured  to  represent  that,  instead  of 
the  constitution  being  voluntarily  established  by  Connecticut  within 
her  borders,  it  was  made  by  the  people  of  all  the  states,  as  a  mass  or 
nation,  and  imposed  on  Connecticut  as  "  the  supreme  law  "  over  her. 
So  far  as  this  constitution  goes,  said  Webster,  "  so  far  state  sover- 
eignty is  effectually  controlled." 

It  is  unquestionable,  then,  that  Connecticut  ratified  as  a  sovereign, 
and  that,  as  a  party,  she  remained  above  the  said  constituted  league, 
above  the  "  powers  "  she  entrusted,  and  above  the  agency  created  for 
the  exercise  of  those  powers.  It  could  not  be  otherwise,  for  the 
agency  was  to  consist  of  the  elected  subjects  of  the  federalized  sover- 
eigns, and  could  but  be  subordinate  to  them.  We  are  not  called 
upon  to  consider  whether  she  could  have  merged  herself,  and  extin- 
guished her  statehood,  for  the  fact  is  proved  that  she  did  not  do  so. 
Here,  then,  is  absolute  sovereign  No.  II. 


CHAPTEE  IV. 

NEW  YORK  FEDERALIZES  HERSELF. 

THE  ELEVENTH  TO  RATIFY  — VOTE,   30  TO  27  — DATE,  JULY  26,   1788. 

IN  the  convention  of  this  state,  the  contest  was  long,  severe,  and 
doubtful,  principally  turning  upon  the  existence  or  non-existence 
in  the  constitution,  of  the  principles  now  asserted  by  the  Massachu- 
setts school.  These  were  then  urged  as  serious  charges.  Indeed,  two 
of  her  delegates,  Yates  and  Lansing,  had  left  the  federal  convention 
because  they  were  "  opposed  to  any  system,"  however  modified,  which 
had  in  view  the  "  consolidation  of  the  united  states  into  one  govern- 
ment." And,  as  they  feared  that  the  system  proposed  by  the  conven- 
tion had  a  tendency  to  that  evil,  they  strove  to  have  it  rejected  by 
their  state. 

What  her  Statesmen  thought  of  the  System.  —  The  views  taken 
and  the  defence  made  by  the  federalists  of  Massachusetts,  were  re- 
peated in  the  convention  of  New  York.  The  leading  constitutionists, 
with  masterly  ability,  refuted  the  said  charges,  and  showed  that  the 
states  were  to  be  preserved  intact,  as  the  very  basis,  nay,  as  the  "  es- 
sential component  parts  of  the  union,"  and  were,  as  absolute  sover- 
eigns, then  dividing  the  powers  they  chose  to  delegate,  between  their 
state  governments  and  their  federal  (or  league-al)  one ;  the  subject 
then  in  hand  being  the  creation  and  endowment  of  the  latter  by  the 
compacting  sovereign  states. 

JOHN  JAY,  the  first  chief  justice  under  the  new  constitution,  said, 
in  his  address  to  the  people  of  New  York,  early  in  1788,  to'  induce 
them  to  adopt  the  new  system  :  "  The  proposed  government  is  to  be 
the  government  of  the  people  :  all  its  officers  are  to  be  their  officers, 
and  to  exercise  no  rights  but  such  as  the  people  commit  to  them. 
The  constitution  only  serves  to  point  out  that  part  of  the  people's 
business,  which  they  think  proper  by  it  to  refer  to  the  management  of 
the  persons  therein  designated.  These  persons  are  to  receive  that 
business  to  manage,  not  for  themselves  and  as  their  own,  but  as  the 
agents  and  overseers  for  the  people,  to  whom  they  are  constantly 
responsible,  and  by  whom  they  are  to  be  appointed."  In  the  same 
address  to  the  people  of  New  York,  from  which  these  words  are 


NEW   YORK  FEDERALIZES   HERSELF.  93 

quoted,  Mr.  Jay  said  :  "  The  states  of  Georgia,  Delaware,  New  Jersey, 
and  Connecticut,  have  adopted  the  present  plan ; "  and  he  earnestly 
advised  the  state  of  New  York  to  do  so.  [I.  Ell.  Deb.  496.]  In  the 
ratifying  convention,  Mr.  Jay  called  the  system  provided  for  in  the 
compact,  a  "  union  of  states,"  and  said  "  the  objects  of  the  general  gov- 
ernment comprehended  the  interests  of  the  states,  in  relation  to  each 
other,  and  in  relation  to  foreign  powers."  His  view  obviously  was  that 
the  states,  as  sovereign  bodies,  were  compacting  and  creating  a  gov- 
ernmental agency,  which  was  to  remain  subordinate  to  them,  and  act 
as  their  servitor  in  "  providing  for  the  common  defence  and  promoting 
the  general  welfare."  [II.  Ell.  Deb.  282  et  seq.] 

ROBERT  R.  LIVINGSTON,  the  chancellor  of  the  state,  said,  in  the 
same  convention  :  "  A  republic  may  very  properly  be  formed  by  a 
league  of  states ;  but  the  laws  of  the  general  legislature  must  act  and 
be  enforced  upon  individuals.  I  am  contending  for  this  species  of 
government."  [II.  Ell.  Deb.  274.] 

He  said  further  :  "  Our  existence  as  a  state  depends  on  a  strong 
and  efficient  federal  government ; "  but  "  we  "  [the  people  of  New 
York]  must  see  that  the  power  we  "  entrust  to  our  rulers  be  so  placed 
as  to  insure  our  liberties  and  the  blessings  of  a  well-ordered  govern- 
ment." And  after  stating  the  fact  that  "  the  American  people  were 
all  agreed  upon  the  great  principle  of  government,"  that  "  all  power 
is  derived  from  the  people,"  he  spoke  as  follows  :  "  They  consider  the 
state  and  federal  governments  as  different  deposits  of  that  power. 
In  this  view,  it  is  of  little  moment  to  them  whether  that  portion  of 
it  which  they  must,  for  their  own  happiness,  lodge  in  their  rulers,  be 
invested  in  the  state  governments  only,  or  shared  between  them  and 
the  councils  of  the  union.  The  rights  they  reserve  are  not  diminished, 
and  probably  their  liberty  acquires  additional  security  from  the  divi- 
sion." [II.  Ell.  Deb.  210.]  What  people  did  he  mean]  Who  were 
dividing  their  powers,  —  delegating  some  and  reserving  others  1  Of 
course,  the  people  of  the  state,  whose  convention  he  was  then  address- 
ing and  advising. 

ALEXANDER  HAMILTON,  in  the  same  convention,  characterized  the 
new  political  system  as  "  a  confederacy  of  states,  in  which  the  supreme 
legislature  has  only  general  powers,  and  the  civil  and  domestic  con- 
cerns of  the  people  are  regulated  by  the  laws  of  the  several  states." 
[II.  Ell.  Deb.  353.]  "While  the  constitution  continues  to  be  read 
and  its  principles  known,  the  states  must,  by  every  rational  man,  be 
considered  as  essential  component  parts  of  the  union."  [Ibid.  304.] 
"  The  destruction  of  the  states  must  be  at  once  a  political  suicide. 
Can  the  national  government  be  guilty  of  this  madness]"  [Ibid.  353.] 
"  The  question  of  the  division  of  powers  between  the  general  and 


94  FEDERALIZATION. 

state  governments  is  a  question  of  convenience.  It  becomes  a  pru- 
dential inquiry  into  the  proper  objects  of  the  two  governments.  This 
is  the  criterion  by  which  we  shall  determine  the  just  distribution  of 
powers."  "  We  "  —  who  ?  "  Determine  "  —  what  ?  Evidently  "  the 
people  "  of  New  York,  in  convention,  were  determining  "the  just  dis- 
tribution "  of  their  "  powers."  Hamilton  did  not  see  "  the  nation  " 
then  establishing  a  "  distribution  of  powers  between  this,  their  general 
government,  and  their  several  state  governments." 

John  Lansing,  the  chief  opponent  of  the  new  system,  admitted, 
in  the  ratifying  convention,  that  the  framers  of  the  federal  system 
designed  the  senators  "  to  represent  "  and  "  to  protect  the  sovereignty 
of  the  several  states  ; "  but  he  charged  and  argued  that  the  operation 
and  tendency  of  the  system  would  be  contrary  to  the  design.  [Ibid. 
289,  290.] 

Ratification  in  Confidence  of  Amendments.  —  All  their  argu- 
ments, however,  would  have  been  futile,  but  for  the  understanding 
that  the  much  dreaded  danger  would  be  specially  forefended  by 
amendment.  In  the  circular  letter  to  the  other  states,  dated  July  28, 
1788,  signed  by  Governor  George  Clinton,  "  by  unanimous  order  of 
the  convention,"  it  was  stated  that  "  several  articles  "  were  "  so  excep- 
tionable to  a  majority  of  us,  that  nothing  but  the  fullest  confidence 
of  obtaining  a  revision,  .  .  .  and  an  invincible  reluctance  to  sepa- 
rating from  our  sister  states,  could  have  prevailed  upon  a  sufficient 
number  to  ratify  it  without  stipulation  for  previous  amendments." 
[II.  Ell.  Deb.  413.] 

And  the  convention,  in  the  very  act  of  ratifying  the  constitution, 
did  "declare  and  made  known"  the  following,  among  34  articles, 
declaratory  of  the  understanding  of  New  York  :  — 

I.  "  That  all  power  is  originally  vested  in,  and,  consequently,  de- 
rived from,  the  people ;  and  that  government  is  instituted  by  them 
for  their  common  interests,  protection,  and  security." 

III.  "  That  the  powers  of  government  may  be  re-assumed  by  the 
people,  whensoever  it  shall  become  necessary  to  their  happiness ;  that 
every  power,  jurisdiction,  and  right,  which  is  not,  by  the  said  constitu- 
tion, clearly  delegated  to  the  congress  of  the  united  states,  or  the 
departments  of  the  government  thereof,  remains  to  the  people  of  the 
several  states,  or  to  their  respective  state  governments,  to  whom  they 
may  have  granted  the  same ;  and  that  those  clauses  in  the  said  con- 
stitution, which  declare  that  congress  shall  not  have  or  exercise  certain 
powers,  do  not  imply  that  congress  is  entitled  to  any  powers  not  given 
by  the  said  constitution,  but  such  clauses  are  to  be  construed  either 
as  exceptions  to  certain  specified  powers,  or  as  inserted  for  greater 
caution."  [I.  Ell.  Deb.  327.] 


NEW  YORK  FEDERALIZES  HERSELF.  95 

What  people  were  then  "delegating  powers"  for  "  their  happiness" 
and  "  security  "  1  The  people  of  the  state,  of  course.  By  what  peo- 
ple, then,  was  the  power  at  that  moment  being  "  delegated,"  to  be 
"  re-assumed  "  when  "  necessary  to  their  happiness  "  ?  The  nation 
"re-assuming"  power  "delegated"  by  the  state  is  a  gross  solecism, 
and  by  this  single  sentence  the  whole  argument  against  the  right  of 
secession  is  scattered  to  the  winds ! 

Decisive  Proof  that  "  we,  the  People,"  means  New  York.  —  To 
conclude  the  case  of  New  York,  I  quote  the  ordaining  words  of  her  act 
of  ratification,  and  beg  the  reader  to  reflect  that  there  is  no  breath  of 
federal  existence,  or  shade  of  federal  power,  in  New  York,  except  what 
comes  therein  by  virtue  of  these  words  :  — 

"  We,  the  delegates  of  the  people  of  the  state  of  New  York,  duly 
elected  and  met  in  convention,  having  maturely  considered  the  consti- 
tution of  the  united  states  of  America  ;  ...  in  the  name  and  behalf 
of  the  people  of  the  state  of  New  York,  do,  by  these  presents, 
assent  to,  and  ratify  the  said  constitution." 

In  the  body  of  the  ordinance,  and  as  a  part  thereof,  the  convention 
declare  that  they  ratify,  with  the  understanding  that  "the  rights 
aforesaid  cannot  be  abridged  or  violated ; "  that  "  the  explanations " 
made  are  consistent  with  the  constitution  ;  and  that  they  do  it,  in  con- 
fidence that  the  amendments  "  proposed  "  will  receive  an  early  and 
mature  consideration.  The  ratification  was  carried  by  a  majority  of 
3  in  a  membership  of  57.  Suppose  Dane,  Story,  and  Webster  had 
been  there,  to  talk  of  the  nation  or  aggregate  sovereign  people  "  dis- 
tributing their  powers  between  their  state  governments  and  their  general 
government,"  —  the  said  nation  sovereign  and  the  states  subordinate, 
• —  why,  they  would  have  been  derided,  and.  the  federal  plan  spurned 
from  the  convention  ! 

Here  is  the  decisive  act  of  the  political  body  called  New  York, 
"  assenting  to  and  ratifying"  the  constitution,  with  her  own  free  and 
absolute  will,  precisely  as  any  sovereign  state  of  Europe  would  have 
given  her  assent  to  any  agreement  with  co-equal  states.  This  ordi- 
nance is  the  only  possible  act  of  sovereign  authority  putting  in  force  in 
New  York  the  federal  compact  and  its  resultant  government.  It  was 
the  will  of  New  York,  and  not  that  of  any  nation,  that  then  and  there 
made  and  finished  the  "supreme  law."  From  her,  and  her  sister 
sovereigns,  the  government  then  received  its  existence,  its  status,  and 
the  power  it  was  to  exercise  in  trust  "  for  the  common  defence  and  the 
general  welfare."  It  is  absurd  to  suppose  this  delegated  authority 
could  ever  become  coercive  authority  over  the  sovereigns,  principals, 
and  masters  that  had  delegated  it ;  or  to  suppose  that  such  authority 
did  not  remain  simple  legal  jurisdiction,  to  be  enforced  by  legal 


96  FEDERALIZATION. 

means,  over  the  individual  citizens  of  the  states, — such  jurisdiction 
being  derived,  as  aforesaid,  solely  from  the  said  sovereigns,  whose 
subjects  all  citizens  respectively  are.  Hence  we  see  that  New 
York  remained,  as  she  intended  to  be  —  an  absolute  sovereign  in 
the  union. 

Her  Present  Autocratical  Declarations.  —  New  York  now  repeat- 
edly declares,  in  her  fundamental  laws,  her  absolute  sovereignty  in  the 
union,  —  even  rivalling  Massachusetts  in  her  imperial  self-assertion. 
Exempli  gratia,  she  declares,  in  her  constitution,  adopted  November  3, 
1846,  that  "the  people  of  this  state,  in  their  right  of  sovereignty, 
are  deemed  to  possess  the  original  and  ultimate  property,  in  and  to  all 
lands  within  the  jurisdiction  of  the  state."  [Const,  of  N.  Y.  §  2.] 

She  also  declares,  as  part  of  her  fundamental  law,  that  "  the  sover- 
eignty and  jurisdiction  of  this  state  extend  to  all  the  places  within  the 
boundaries  thereof,  as  declared  in  the  preceding  title;  but  the  extent 
of  such  jurisdiction  over  places  that  have  been,  or  may  be,  ceded  to 
the  united  states,  shall  be  qualified  by  the  terms  of  such  cession." 
[I.  Rev.  Stat.  N.  Y.]  Note  that  it  is  "jurisdiction,"  and  not  sover- 
eignty, that  is  to  be  qualified.  We  shall  hereafter  see  that  the  fed- 
eral government  has  foothold,  to  exist  and  act,  in  any  state,  only  by 
permission  and  grant  of  the  sovereign  commonwealth,  and  strictly 
according  to  the  terms  of  such  grant. 

She  declares,  further,  that  "  it  shall  be  the  duty  of  the  governor, 
and  of  all  the  subordinate  officers  of  the  state,  to  maintain  and  defend 
its  sovereignty  and  jurisdiction."  [Ibid.] 

She  further  declares,  that  "  no  member  of  this  state  shall  be  dis- 
franchised, or  deprived  of  any  of  the  rights  or  privileges  secured  to 
any  citizen  thereof,  unless  by  the  law  of  the  land,  or  the  judgment  of 
his  peers ; "  and  that  "  no  authority  can,  on  ,any  pretence  whatsoever, 
be  exercised  over  the  citizens  of  this  state,  but  such  as  is,  or  shall  be, 
derived  from,  and  granted  by,  the  people  of  this  state."  [Const.  N.  Y. 
Art  I.  §  1 ;  Rev.  Stat.  ch.  IV.  §  1.] 

Judging,  then,  from  her  own  federal  history  and  present  declara- 
tions, no  more  absolute  sovereign  than  New  York  exists  on  earth. 
She  alone  has  the  supreme  right  of  government  upon  her  soil,  and  the 
federal  government  exists  and  acts  there  solely  as  her  agent. 


CHAPTEK  V. 

NEW  JERSEY  FEDERALIZES  HERSELF. 

THE  THIRD  TO  RATIFY  — VOTE,  UNANIMOUS  —  DATE,   DEC.  18,   1787. 

IN  the  convention  of  states,  New  Jersey  was  represented  by  Gov- 
ernor William  Livingston,  David  Brearly,  Wm.  Patterson,  and 
Jonathan  Dayton.  These  statesmen,  with  the  delegates  from  Con- 
necticut, Delaware,  and  other  minor  states,  insisted  on  the  strict  prin- 
ciples of  federation  being  observed ;  and,  as  will  be  seen,  they  were 
completely  successful,  vanquishing  their  opponents  in  argument,  as 
well  as  in  voting.  So  satisfactory  was  the  plan  adopted,  that  they 
signed  it,  and  aided  at  home  to  procure  the  ratification  of  their  state, 
which  was  unanimous. 

The  Views  of  her  Statesmen.  —  WILLIAM  PATTERSON,  who,  in  the 
federal  convention,  introduced  the  plan  of  the  new  system,  known  as 
the  New  Jersey  plan  [see  I.  Ell.  Deb.  1 75],  said  that  "  the  amend- 
ment of  the  confederacy  was  the  object  of  all  the  laws  and  commis- 
sions upon  the  subject."  "  The  commissions  under  which  we  act  are 
not  only  the  measure  of  our  power :  they  denote,  also,  the  sentiments 
of  the  states  on  the  subject  of  our  deliberation.  The  idea  of  a  national 
government,  as  contradistinguished  from  a  federal  one,  never  entered 
into  the  mind  of  any  of  them ;  and  to  the  public  mind  we  must  ac- 
commodate ourselves."  [V.  Ell.  Deb.  176.]  He  said,  further,  in  refer- 
ence to  a  plan  tending  to  consolidation  :  "  We  are  met  here  as  deputies 
of  thirteen  independent  sovereign  states,  for  federal  purposes.  Can 
we  consolidate  their  sovereignty,  and  form  one  nation,  and  annihilate 
the  sovereignty  of  our  states,  who  have  sent  us  here  for  other  pur- 
poses 1  .  .  .  But  it  is  said  that  this  national  government  is  to  act  on 
individuals,  and  not  on  states ;  and  cannot  a  federal  government  be 
so  formed  as  to  operate  in  the  same  way  1  It  surely  may.  I  therefore 
declare  that  I  will  never  consent  to  the  present  system,  and  I  shall 
make  all  the  interest  against  it,  in  the  state  I  represent,  that  I  can." 
[I.  Ell.  Deb.  403.] 

These  remarks  were  made  early  in  the  session  (June  9,  1787),  when 
it  was  proposed  to  give  the  small  states  power  in  the  new  system  only 
in  proportion  to  their  numbers,  and  when  their  delegates  feared  that 

7 


98  FEDERALIZATION. 

they  would  be  gradually  merged  into  a  nation.  The  plan  that  finally 
prevailed,  as  will  be  seen,  was,  as  he  then  expressed  it,  "  a  federal  gov- 
ernment" "so  formed  as  to  operate"  "  on  individuals,  and  not  on 
states." 

I  have  many  kindred  expressions  from  the  New  Jersey  statesmen, 
but  not  having  space  for  them,  I  select  the  above  as  the  most  pithy, 
as  well  as  a  fair  specimen.  It  is  also  one  of  the  most  accessible  ones 
to  the  common  reader.  Moreover,  it  fairly  represents  the  theory 
which  predominated  in  the  federal  convention,  not  only  in  two  or  three 
decisive  votes,  but  generally  in  the  plan  adopted.  Strict  federal  prin- 
ciples prevailed.  The  states,  as  political  bodies,  were  to  be  the  parties 
federating,  and  were  to  remain  unchanged,  as  the  actors  in  the  system. 
They  were  to  continue  to  hold,  of  original  right,  all  the  elective  power. 
Each  was  to  choose,  from  her  own  citizens  and  subjects,  her  represen- 
tatives, her  senators,  and  her  electors  of  President ;  and  these,  with 
the  officers  they  —  acting  as  agents  of  the  states  —  should  appoint, 
were  to  be  the  government.  All  federal  acts,  then,  were  to  be  the 
acts  of  the  states,  through  their  representatives  and  servants,  and 
the  government  consisting  of  these,  could  but  be  subordinate  to  the 
creating  and  electing  sovereignties. 

"  We,  the  People  "  of  New  Jersey.  —  The  federal  delegates  not 
only  approved  the  plan,  but  they  assured  their  state  that  her  integrity 
and  sovereignty  were  safe.  Congress,  as  the  agent  of  the  states,  sent 
the  plan  to  New  Jersey.  The  legislature,  on  the  29th  of  October, 
1787,  enacted  that  a  convention  should  meet  at  the  capital,  and 
"  then  and  there  take  into  consideration  the  aforesaid  constitution, 
and,  if  approved  of  by  them,  finally  to  ratify  the  same,  in  behalf  and 
on  the  part  of  this  state"  [I.  Ell.  Deb.  320.] 

The  convention  was  held,  and  the  constitution  thoroughly  discussed 
by  sections ;  but  no  debates  having  been  preserved, we  must  resort  to 
the  journals,  political  writings,  etc.,  of  that  day,  to  learn  the  prevail- 
ing ideas.  Here  is  an  extract  from  an  address  to  the  people  of  the 
state,  to  induce  them  to  accede  :  "  By  whom  are  those  taxes  to  be  laid  1 
By  the  representatives  of  the  several  states  in  congress,  ...  in  per- 
fect conformity  to  that  just  maxim  in  free  governments,  that  taxation 
and  representation  should  go  hand  in  hand.  To  what  purpose  are 
these  taxes  to  be  applied  ?  To  pay  the  debts,  and  provide  for  the 
common  defence  and  general  welfare  of  the  united  states.  Although 
I  drew  my  first  breath  in  New  Jersey,  and  have  continued  in  it  dur- 
ing my  life,  firmly  attached  to  its  local  interest,  yet  when  I  consider 
the  impossibility  of  its  existence,  at  present,  as  a  sovereign  state,  ivith- 
out  a  union  with  the  others,  I  wish  to  feel  myself  more  a  citizen  of  the 
united  states  than  of  New  Jersey  alone."  [American  Museum,  Nov., 


NEW  JERSEY  FEDERALIZES  HERSELF.  99 

1787.]  The  idea  was  to  unite  the  states,  to  preserve  their  sovereignty, 
and  the  involved  blessings  of  their  respective  citizens.  The  following 
extract  is  instructive  :  "  The  convention  of  New  Jersey  was  composed 
of  accomplished  civilians,  able  judges,  experienced  generals,  and  hon- 
est farmers."  As  "the  groundwork  of  its  proceedings"  it  "resolved 
that  the  federal  constitution  be  read  by  sections  ;  upon  which  the  gen- 
eral question  shall  be  taken,  whether  this  convention,  in  the  name  and 
behalf  of  the  people  of  this  state,  do  ratify  and  confirm  the  said  con- 
stitution." [Massachusetts  Centinel,  Jan.  6,  1788.] 

New  Jersey  unanimously  ratified  as  follows  :  "  In  convention  of  the 
state  of  New  Jersey.  .  .  .  Now  be  it  known  that  we,  the  delegates 
of  the  state  of  New  Jersey,  chosen  by  the  people  thereof  for  the 
purpose  aforesaid,  having  maturely  deliberated  on  and  considered  the 
aforesaid  proposed  constitution,  do  hereby,  for  and  on  behalf  of  the 
people  of  the  said  state  of  New  Jersey,  agree  to  ratify  and  confirm 
the  same,  and  every  part  thereof.  Done  in  convention,  by  the 
unanimous  consent  of  the  members  present,  this  eighteenth  day  of 
December,  A.D.  1787." 

The  federal  constitution  and  government  have  no  existence  or 
power  in  New  Jersey,  except  by  virtue  of  this  ordinanca  This,  as  to 
her,  constitutes  the  league  called  the  federal  constitution. 


CHAPTER  VI. 

PENNSYLVANIA  FEDERALIZES  HERSELF. 

THE  SECOND  TO  RATIFY  — VOTE,  46  TO  23  — DATE,   DEC.    12,   1787. 

PENNSYLVANIA  was  the  first  of  the  states  to  call  a  convention ; 
though  the  opponents  compelled  a  month's  debate,  thus  allow- 
ing Delaware  to  bear  off  the  honor  of  the  first  ratification.  It  was 
in  the  convention  of  this  state,  however,  that  the  first  grand  contest 
over  the  new  system  took  place,  and  the  vindication  of  it  is  peculiarly 
significant  and  interesting.  The  charges  were  mainly  those  we  have 
already  reviewed.  One-third  of  the  69  members  issued  an  able  ad- 
dress, putting  them  strongly,  and  winding  up  with  the  assertion  that 
"  consolidation  pervades  the  whole  instrument."  The  system  had 
just  transpired  from  what  was  called  a  "  secret  conclave,"  and  it  was 
alike  seemingly  novel  and  really  surprising.  The  people  feared  that 
it  would  overshadow  and  gradually  destroy  the  state,  while  they  were 
intensely  anxious  to  preserve  her  sovereignty. 

In  a  subsequent  chapter,  I  shall  take  Pennsylvania  as  an  exemplar, 
to  exhibit  the  original  formation  of  an  Anglo-American  state,  and 
show  how  thoroughly  separate  she  was  in  settlement,  organization, 
and  government ;  how  the  people  of  the  prospective  commonwealth 
were  habituated  to  the  traditions  and  ideas  of  complete  political  dis- 
connection, except  as  to  the  sovereign,  England :  how  the  people  of 
the  state  were  declaredly  England's  successor  in  the  sovereignty;  how 
all  the  states  joined  in  acknowledging  and  guaranteeing  each  to  be 
sovereign  [see  art.  II.  of  the  first  federal  compact] ;  how  the  states- 
men, in  all  they  did,  were  obliged  to  obey  and  conform  to,  and  not 
impair  and  destroy,  this  sovereignty ;  and,  finally,  how  the  federation, 
being  one  of  republics,  named  in  the  compact  and  remaining  un- 
changed, must,  in  the  nature  of  things,  be  and  continue  purely  volun- 
tary. Precisely  consonant  with  these  ideas  are  the  explanations  of 
the  statesmen  of  Pennsylvania,  now  to  be  given. 

She  associates  as  a  Sovereign.  —  TENCH  COXE,  one  of  her  great 
leaders,  and  one  of  the  ablest  political  writers  of  that  day,  explained 
that  the  constitution  was  to  be  "the  act  of  the  people ; "  "yet,"  said 
he,  "  it  is  to  be  done  in  their  capacities  as  citizens  of  the  several  mem- 


TW 

PENNSYLVANIA  FEDERALIZES   HERSELKC  101 


bers  of  our  confederacy,  who  are  declared  to  be  the  people  of  the 
united  states.'1  [Am.  Museum  for  February,  1788.]  With  express 
reference  to  consolidation,  he  said  :  "  If  the  federal  convention 
had  meant  to  exclude  the  idea  of  *  union  '  —  that  is,  of  several  and 
separate  sovereignties  joining  in  a  confederacy — they  would  have  said  : 
'  We,  the  people  of  America ; '  for  union  necessarily  involves  the  idea 
of  competent  states,  which  complete  consolidation  excludes."  [Ibid.] 
In  reference  to  the  senators  in  congress,  he  said  :  "  Each  of  whom 
will  be  chosen  by  the  legislature  of  a  free,  sovereign,  and  independent 
state."  [Am.  Museum  for  October,  1787.]  And  in  meeting  the 
objection  that  the  new  constitution  contained  no  bill  of  rights,  he 
wrote  as  follows  :  "  The  old  federal  constitution  contained  many  of 
the  same  things,  which,  from  error  or  disingenuousness,  are  urged 
against  the  new  one.  Neither  of  them  has  a  bill  of  rights ;  nor  does 
either  notice  the  liberty  of  the  press,  because  they  are  already  pro- 
vided for  by  the  state  constitutions ;  and,  relating  only  to  personal 
rights,  they  could  not  be  mentioned  in  a  contract  among  sovereign 
states."  [Ibid.]  Here  we  have  the  idea,  so  frequently  brought  to 
view,  that  personal  or  private  rights  are  already  secured  by  the  social 
compact,  the  obligation  of  which  requires  the  body-politic  or  state  to 
protect  them ;  and  that  the  great  object  of  the  federal  compact  was 
to  make  the  securers  secure,  that  is,  to  unite  the  states  for  their  com- 
mon defence  and  general  welfare. 

JAMES  WILSON,  a  leading  member  of  both  the  federal  and  state  con- 
ventions, one  of  the  very  first  statesmen  of  that  period,  and  afterwards 
one  of  the  federal  supreme  judges,  said,  in  the  ratifying  convention, 
to  allay  the  fear  that  the  state  governments  might  not  be  preserved, 
that  "  upon  their  existence  depends  the  existence  of  the  federal  plan." 
In  answering  the  question  where  sovereignty  resided,  he  said  :  "  The 
supreme,  absolute,  and  uncontrollable  power  is  in  the  people,  before 
they  make  a  constitution,  and  remains  in  them  after  it  is  made.  .  .  . 
The  sovereignty  resides  in  the  people.  This  principle  settled,  they 
can  take  from  the  state  governments  powers  with  which  they  have 
hitherto  trusted  them,  and  place  them  in  the  general  government,  if  it 
is  thought  they  will  there  be  productive  of  more  good."  Of  course, 
he  could  only  mean  that  the  authority  which  formed  the  state  govern- 
ment could  withdraw  and  redelegate  the  said  "  powers,"  and  this  could 
but  be  the  state  as  a  commonwealth  of  people.  The  following  extracts 
show  this.  He  compared  "  the  advantages  and  necessity  of  civil  gov- 
ernment among  individuals"  with  those  of  "a  federal  government 
among  states."  Of  course,  he  knew  that  in  the  self-formation  of  a 
free  society  of  men  or  states,  the  integrity  of  the  constituents  must 
be  preserved.  In  none  of  his  speeches  or  writings  does  he  disregard 


102  FEDERALIZATION. 

this  idea.  " The  united  states"  said  he,  " may  adopt  any  one  of  four 
different  systems.  They  may  become  consolidated  into  one  govern- 
ment, in  which  the  separate  existence  of  the  states  shall  be  entirely 
absorbed.  They  may  reject  any  plan  of  union  or  association,  and  act 
as  separate  and  unconnected  states.  They  may  form  two  or  more  con- 
federacies. They  may  unite  in  one  federal  republic.  Which  of  these 
systems  ought  to  have  been  formed  by  the  convention1?"  After 
showing  the  inadmissibility  of  the  first  three,  he  proceeds :  "  The 
remaining  system  which  the  American  states  may  adopt  is  a  union  of 
them  under  one  confederate  republic.  .  .  .  This  is  the  most  eligible 
system  that  can  be  proposed."  Quoting  from  Montesquieu,  he  pro- 
ceeds to  say  :  "  Its  description  is  '  a  convention  by  which  several  states 
agree  to  become  members  of  a  larger  one  which  they  intend  to  establish. 
It  is  a  kind  of  assemblage  of  societies  which  constitute  a  new  o?ie, 
capable  of  increasing  by  means  of  further  association.'  "  [For  the 
above  extracts,  see  II.  Ell.  Deb.  421-8.] 

In  these  extracts,  Wilson  recognizes  the  states  as  the  absolute  ac- 
tors, and  necessarily  the  sovereigns,  and  gives  no  support  to  the  idea 
of  Story,  Webster,  and  Curtis,  that  a  nation  ratified  and  established  the 
constitution,  though  the  last  named  seems  to  quote  from  him  with  great 
partiality  in  support  of  the  national  theory.  The  reader  will  please 
note,  also,  that  Wilson  here  recognizes  the  idea  of  republics  uniting  in 
a  republic  of  republics,  i.  e.  of  "  societies  which  constitute  a  new  one.'" 

One  more  extract  will  suffice.  Early  in  October,  1787,  he  said  in 
a  speech  at  Philadelphia  :  "  .  .  .  Let  it  be  remembered,  then,  that 
the  business  of  the  federal  convention  was  not  local  but  general ;  not 
limited  to  the  views  and  establishments  of  a  single  state,  but  co- 
extensive with  the  continent,  and  comprehending  the  views  and  estab- 
lishments of  thirteen  independent  sovereignties."  [Mass.  Centinel, 
October  24,  1 787  ;  also  Am.  Museum.]  This  and  several  other  equally 
striking  passages  from  Wilson's  speeches,  Mr.  Curtis  failed  to  quote 
in  the  "  History  of  the  Constitution." 

DR.  FRANKLIN,  who  was  at  the  time  the  president  of  Pennsylvania, 
proposed  in  the  federal  convention,  a  second  branch  of  the  congress, 
in  which  "  each  state  should  have  equal  suffrage,"  "  in  all  cases  or 
questions  wherein  the  sovereignties'  of  the  individual  states  may  be 
affected,  or  whereby  their  authority  over  their  own  citizens  may  be 
diminished."  [V.  Ell.  Deb.  266.] 

Whom  did  she  mean  by  "  We,  the  People."  —  CHIEF  JUSTICE 
McKEAN,  afterwards  governor,  said  in  the  ratifying  convention  :  "  The 
power  of  this  convention  is  derived  from  the  people  of  Pennsylvania" 
The  members,  he  said,  had  been  "  chosen  by  the  people,  for  the  sole 
purpose  of  assenting  to,  or  ratifying,  the  constitution  proposed  for  the 


PENNSYLVANIA  FEDERALIZES  HERSELF.  103 

future  government  of  the  united  states,  with  respect  to  their  general 
and  common  concerns,  or  of  rejecting  it."  "  It  has  been  moved  that 
you  resolve  '  to  assent  to  and  ratify  this  constitution.'  Three  weeks 
have  been  spent  in  hearing  objections,  .  .  .  and  it  is  now  time  to 
determine  whether  they  are  of  such  a  nature  as  to  overbalance  any 
benefits  or  advantages  that  may  be  derived  to  the  state  of  Pennsyl- 
vania by  your  accepting  it."  [II.  Ell.  Deb.  530.] 

Said  JAMES  WILSON,  in  the  same  body,  on  this  subject :  "  The 
single  question  to  be  determined  is,  shall  we  assent  to  and  ratify  the 
constitution  proposed  %  As  this  is  the  first  state  whose  convention 
has  met  on  the  subject,  and  as  the  subject  itself  is  of  great  impor- 
tance, not  only  to  Pennsylvania  but  to  the  united  states,  it  was 
thought  proper,  fairly,  openly,  and  candidly  to  canvass  it.  ...  We 
were  sent  here  to  express  the  voice  of  our  constituents  on  the  sub- 
ject." [II.  Ell.  Deb.  494.]  And  in  his  speech  at  Philadelphia,  Oct. 
6,  1787,  in  showing  that  a  bill  of  rights  was  not  needed,  he  said  :  "  It 
would  have  been  superfluous  and  absurd  to  have  stipulated  with  a  fed- 
eral body  of  our  own  creation,  that  we  should  enjoy  those  privileges  of 
which  we  are  not  divested,  either  by  the  intention  or  the  act  that  has 
brought  that  body  into  existence."  [Mass.  Centinel,  October  24,  1787.] 

These  remarks  of  McKean  and  Wilson,  which  met  no  dissent,  are 
enough  to  show  the  idea  of  all  to  be  that  the  state,  ex  mero  motu,  was 
acting  as  a  sovereign.  But  the  proof  is  made  complete  by  the  ordi- 
nance of  ratification,  the  substantial  words  of  which  follow  :  "  In  the 
name  of  the  people  of  Pennsylvania.  Be  it  known  unto  all  men,  that 
we,  the  delegates  of  the  people  of  the  commonwealth  of  Penn- 
sylvania, in  general  convention  assembled,  ...  by  these  pres- 
ents do,  in  the  name  and  by  the  authority  of  the  same  people, 
and  for  ourselves,  assent  to  and  ratify  the  foregoing  constitution 
for  the  united  states  of  America.  Done  in  convention  at  Philadel- 
phia, the  12th  of  December,  1787."  [I.  Ell.  Deb.  319.] 

In  conclusion,  we  find  that  the  federal  history  of  Pennsylvania 
gives  no  support  whatever  to  the  Massachusetts  school.  The  false 
and  dangerous  notions  of  Dane,  Story,  Webster,  and  Curtis,  which 
then  appeared  as  charges  by  foes,  were  despised  and  repudiated,  and 
the  elder  and  better  Massachusetts  ideas  prevailed,  —  that  sovereign 
states  were  the  actors  in  forming  and  empowering  the  new  system ; 
that  it  was  a  confederacy  of  states,  or  republic  of  republics,  that  was 
being  formed  ;  that  the  constitution  of  it  was  the  concurrent  written 
will  of  the  self-associated  states ;  and  that  the  agency,  or  adminis- 
trative body  of  the  system,  was  composed  exclusively  of  the  members 
and  "  subjects  "  of  the  states. 

We  find  Pennsylvania,  then,  to  be  another  absolute  sovereign  of 
our  federation. 


CHAPTEE  VII. 

DELAWARE  AND  MARYLAND  FEDERALIZE  THEMSELVES. 

r  I  ^HESE  two  states  will  be  disposed  of  together,  as  they  made  but 
-*•     a  small  record,  owing  to  the  readiness  of  their  accession.     But 
their  acts  of  ratification  afford  us  two  more  proofs  of  the  federal  (or 
league-al)  system.     Let  us  first  give  the  case  of 

DELAWARE. 

The  first  to  Ratify  —  Vote  unanimous  —  Date,  December  7, 
1787. —  This  little  state  figures  in  American  history  as  the  first  to 
ratify  the  constitution.  Her  ready  adoption  is  strong  evidence  that 
the  system  was  a  federation  of  equals,  for  she  was  determined  to  pre- 
serve herself.  Moreover,  her  chief  men  gave  her  such  explanations 
and  assurances  as  the  following  from  John  Dickinson,  who  had  been 
her  as  well  as  Pennsylvania's  president,  who  was  a  member  of  the 
federal  convention,  and  one  of  the  great  political  writers  of  that 
period.  He  habitually  called  the  new  system  "  a  confederation  of  the 
states,"  and  he  said  it  was  the  duty  of  the  congress  under  the  system, 
"to  reconcile  in  their  determinations,  the  interests  of  several  sovereign 
states."  [II.  Pol.  Writings  of  J.  D.] 

"We,  the  People"  of  Delaware.  —  Space  will  not  permit  exten- 
sive quotations,  so  I  will  conclude  her  case  by  presenting  her  idea  of 
what  "we,  the  people,"  meant,  just  as  she  then,  by  and  in  the  act  of 
ratifying,  impressed  it  upon  the  world.  The  Pennsylvania  Gazette, 
of  Dec.  20,  1787,  says  that  "while  Delaware  acted  thus  speedily, 
Pennsylvania  is  debating  the  ground  by  inches,  having  been  in  session 
almost  a  month,  and  being  yet  engaged  on  the  first  article."  The 
Massachusetts  Centinel,  of  Dec.  26,  1787,  has  the  following:  "DELA- 
WARE. —  The  deputies  of  the  state  convention  of  Delaware,  met  at 
Dover,  on  Monday,  the  3d  inst.,  and,  a  house  being  formed,  they 
elected  James  Latimer,  Esq.,  president.  On  Thursday,  they  ratified 
the  federal  constitution  by  a  unanimous  vote,  and  on  Friday,  every 
member  signed  the  ratification,  as  follows  :  "We,  the  deputies  of  the 


DELAWARE  AND  MARYLAND  FEDERALIZE   THEMSELVES.     105 

people  of  Delaware  state,  in  convention  met,  having  taken  into  our 
serious  consideration  the  federal  constitution  proposed  and  agreed 
upon,  by  the  deputies  of  the  united  states,  at  a  general  convention 
held  at  the  city  of  Philadelphia,  on  the  1 7th  day  of  September,  A.  D. 
1787,  have  approved  of,  assented  to,  and  ratified  and  confirmed,  and 
by  these  presents,  do,  in  virtue  of  the  powers  and  authority  to  us 
given  for  that  purpose,  for,  and  in  behalf  of  ourselves  and  constitu- 
ents, fully,  freely,  and  entirely  approve  of,  assent  to,  ratify  and  con- 
firm the  said  constitution.  Done  in  convention  at  Dover,  Dec.  7, 
1787."  [See  also  I.  Ell.  Deb.  319.] 

This  was  a  complete  and  final  act  of  sovereign  will,  by  a  state,  as 
such ;  and  when  the  constitution,  according  to  its  terms,  went  into 
effect,  it  was  this  and  twelve  other  like  acts  that  gave  it  all  the  life 
and  validity  it  ever  had,  or  could  have,  as  to  the  thirteen  united  or 
associated  states.  And  it  was  from  these  acts  that  the  entire  exist- 
ence and  jurisdiction  of  the  high  and  mighty  "government"  flowed. 
Moreover,  this  "  government "  was  composed  personally  and  entirely 
of  the  citizens  and  subjects  of  the  ratifiers.  It  is,  then,  obviously 
both  fallacious  and  absurd  to  say  that  so  far  as  this  constitution  goes, 
"  so  far  state  sovereignty  is  effectually  controlled."  It  is  equally  so 
to  say  that  the  people,  as  republics,  are  not  above  the  constitution 
of  government  they  have  created,  and  elected  their  own  subjects  to 
operate  or  administer. 

MARYLAND. 

The  Seventh  to  Ratify — Vote,  63  to  11  —  Date,  April  28,  1788. 

—  When  the  convention  of  this  state  met,  the  federal  plan  had  been 
before  the  people  of  the  country,  under  close  investigation  and  eluci- 
dating debate,  for  six  months.      Not  only  did  the  advocates  every- 
where explain  the  design  to  be  "  a  confederation  of  the  states,"  but 
"  the  people  "  could  themselves  see  that  the  bodies-politic  to  which 
they  all  belonged,  and  to  which  they  had  ever  yielded  absolute  obe- 
dience in  all  things,  were  associating  themselves  as  such,  and  were 
named  and  recognized  as  absolute  parties  to  the  compact  and  actors 
under  it.     It  was  plain  to  Marylanders  that  Maryland  was  a  republic, 

—  that  is,  that  she,  as  a  commonwealth,  had  all  original  power,  or, 
in  other  words,  the  absolute  right  of  self-government ;  and,  moreover, 
that  no  power  was  to  be  out  of  her  but  what  was  delegated,  —  that  is, 
entrusted,  for  her  use  and  behoof,  to  an  agency.     Moreover,  the  un- 
derstanding had  become  general,  that  if  the  constitution  should  be 
adopted,   there  would  soon  be  added  the  new  safeguards  to  state 
integrity  already  proposed  by  Massachusetts. 

"  We,  the  People  "  of  Maryland.  —  It  was  probably  these  consid- 


106  FEDERALIZATION. 

erations  and  reflections  that  had  made  the  thoughtful  and  prudent 
people  of  Maryland  so  ready  to  ratify.  Determinedly  self-governing, 
they  reasoned  for  themselves,  and  many  districts  of  them,  having 
concluded  the  matter,  sent  deputies  to  the  convention  simply  to 
ratify  "the  proposed  constitution"  "as  speedily  as  possible,"  "and 
to  do  no  other  act."  [II.  Ell.  Deb.  548.]  And  the  convention 
voted  down  all  attempts  at  delay  and  amendment  —  was  only  in  ses- 
sion a  few  days  —  and  ratified,  by  a  vote  of  63  to  11,  in  the  following 
terms :  "  In  convention  of  the  delegates  of  the  people  of  the  state 
of  Maryland,  April  28,  1788.  We,  the  delegates  of  the  people  of 
Maryland,  having  fully  considered  the  constitution  of  the  united 
states  of  America,  reported  to  congress  by  the  convention  of  deputies 
.  .  .  held  in  Philadelphia,  on  the  17th  day  of  September,  1787,  of 
which  the  annexed  is  a  copy,  and  submitted  to  us  by  a  resolution  of 
the  general  assembly  of  Maryland,  in  November  session,  1787,  do,  for 
ourselves,  and  in  the  name,  and  on  the  behalf  of  the  people  of 
this  state,  assent  to,  and  ratify  the  said  constitution."  [I.  Ell. 
Deb.  324.] 

Luther  Martin's  Letter.  —  The  most  elaborate  and  instructive 
argument  made  against  the  new  system  was  made  by  this  great  Mary- 
lander.  He  was  her  attorney-general,  and  a  member  of  both  federal 
and  state  conventions.  His  charges  against  the  compact  were  mainly 
the  same  we  have  constantly  seen.  He  feared  lurking  causes  of 
danger  in  its  various  provisions,  which,  in  later  years,  might  emerge 
to  destroy  liberty,  and  he  warmly  urged  its  rejection.  He  would,  he 
said,  make  every  personal  sacrifice,  "  if,  on  those  terms  only,  he  could 
procure  his  country  to  reject  those  chains  which  are  forged  for  it!" 
However,  the  chains  he  inveighed  against  did  not  exist  in  the  consti- 
tution. They  were  "forged"  in  the  intellects  of  modern  expounders, 
and  foisted  on  the  constitution  in  after  years,  the  unfounded  charges 
and  arguments  made  by  Martin,  Henry,  and  others  to  defeat  it,  being 
the  very  materials  from  which,  as  we  shall  see,  the  sophistical 
"  chains  "  were  "  forged."  [For  Martin's  letter,  see  I.  Ell.  Deb.  344.] 

The  above  sovereign  act  of  Maryland  was  independent,  absolute, 
and  complete.  It  gave  the  federal  constitution  of  government  full 
force  and  effect  in  Maryland,  according  to  the  terms  of  it.  Not  a 
shade  of  life  and  power  did  it  ever  otherwise  get.  We  have  here,  then, 
the  seventh  sovereign  of  the  constituted  league,  —  the  seventh  of  the 
thirteen  absolute  constituents  of  the  republic  of  republics. 


CHAPTER  VIII. 

VIRGINIA  FEDERALIZES  HERSELF. 

THE  TENTH  TO  RATIFY  — VOTE,   89  TO  79  — DATE,  JUNE  25,  1788. 

HER  convention  was  an  assembly  of  great  men  —  all  attached  to 
the  "  Old  Dominion "  as  to  a  mother ;  all  determined  to  pre- 
serve intact  her  integrity,  and  her  sovereign  will  over  her  interests 
and  destiny ;  and  all  fearing  a  too  powerful  federal  government, 
under  which  the  sovereign  rights  of  the  states,  and  the  liberties  of 
the  people,  might  be  finally  lost.  The  great,  all-comprehensive 
idea  of  the  constitutionists,  and  the  convention  was,  that  Virginia 
and  her  sister  states  were  creating  a  federal  system,  to  which  they 
were  to  give,  each  a  separate  and  independent  sanction,  and  sufficient 
"  delegation  "  of  power  for  its  purposes. 

As  in  other  states,  the  system  was  attacked  from  the  fear  that  it  was 
pregnant  with  the  monster  consolidation.  Patrick  Henry  was  the 
most  active  and  denunciatory;  but  George  Mason  and  others  ably 
backed  him.  They  assailed  the  very  clauses  as  dangerous  and  treason- 
able to  liberty  and  self-government,  from  which  Dane,  Webster,  and 
Story  have  since  deduced  consolidation  or  national  sovereignty.  For 
instance,  they  attacked  the  phrase  in  the  preamble  — "  We,  the 
people  of  the  United  States,  do  ordain  and  establish  this  constitu- 
tion "  —  as  reducing  states  to  subordination,  and  creating  a  na- 
tional supremacy  over  them ;  the  clause  making  the  constitution, 
laws,  and  treaties  "  the  supreme  law  of  the  land,"  as  a  specific  abdica- 
tion of  sovereignty  by  the  states  to  the  nation ;  and  the  clause  giving 
certain  power  over  the  militia,  as  giving  the  general  government 
unlimited  power  and  means  to  execute  its  will,  —  even  over  states. 
Other  objections  were  made,  but  these  were  the  main  ones.  They 
were  all,  in  fact,  misrepresentations,  and  were  then  and  there  fully 
exposed  and  refuted  by  Madison,  Randolph,  Pendleton,  Marshall, 
Nicholas,  Corbin,  Innes,  and  others. 

Virginia  to  remain  a  Sovereign.  —  EDMUND  PEXDLETON,  the  chan- 
cellor of  the  state,  and  the  president  of  the  convention,  said,  in  reply 
to  Henry,  Mason,  and  others,  "  If  the  union  of  the  states  be  necessary, 
government  must  be  equally  so."  "  The  people  are  the  fountain  of 


108  FEDERALIZATION. 

all  power.  They  must,  however,  delegate  it  to  agents,  because  .  .  . 
they  cannot  exercise  it  in  person.  .  .  .  When  we  [the  people  of  the 
state]  were  forming  our  state  constitution,  we  were  confined  to  local 
circumstances.  In  forming  a  government  for  the  union,  we  [the  same 
people]  must  consider  our  situation  as  connected  with  our  neighboring 
states.  .  .  .  If  we  find  it  to  our  interest  to  be  intimately  connected 
with  the  other  twelve  states,  to  establish  one  common  government,  and 
bind  in  one  ligament  the  strength  of  thirteen  states,  we  shall  find  it 
necessary  to  delegate  powers  proportionate  to  that  end  ;  for  the  dele- 
gation of  adequate  powers  in  this  government,  is  no  less  necessary 
than  in  our  state  governments.  To  whom  do  we  delegate  these 
powers  1  To  our  own  representatives.  Why  should  we  fear  greater 
dangers  from  our  representatives  there,  than  from  those  we  have  here  ? 
.  .  .  Every  branch  [of  government]  is  formed  on  the  same  principle, 
preserving  throughout,  the  representative  responsible  character."  [III. 
Ell.  Deb.  298-9.]  He  makes  an  explicit  assertion  of  state  sovereignty 
in  the  union  as  follows  :  "  The  impossibility  of  calling  a  sovereign  state 
before  the  jurisdiction  of  another  sovereign  state,  shows  the  propriety 
and  necessity  of  vesting  this  tribunal  [the  federal  court]  with  the  de- 
cision of  controversies  to  which  a  state  shall  be  a  party."  [Ibid.  549.] 

JAMES  MADISON  had  previously  written  in  number  46  of  the  Feder- 
alist :  "  The  federal  and  state  governments  are,  in  fact,  but  different 
agents  and  trustees  of  the  people,  instituted  with  different  powers.  .  .  . 
The  ultimate  authority  —  wherever  the  derivative  may  be  found  — 
resides  in  the  people  alone."  And  he  explained  in  the  Virginia  con- 
vention, as  well  as  in  the  Federalist,  that  it  is  "  the  people  as  composing 
thirteen  sovereignties"  who  possess  this  ultimate  authority,  and  " are 
parties  to  "  the  constitution.  [III.  Ell.  Deb.  94.]  In  number  40  of 
the  Federalist,  he  said,  "The  states  were  regarded  as  distinct  and 
independent  sovereigns  ...  by  the  constitution  proposed."  See  also 
number  39  for  his  full  explanation. 

JAMES  INNES,  an  able  jurist  and  statesman,  said,  in  the  same  con- 
vention, "  After  five  months  spent  in  tedious  and  painful  investigation, 
they  [the  federal  convention]  with  great  difficulty  devised  the  paper 
on  the  table.  And  it  has  been  adopted  by  every  state  which  has  con- 
sidered and  discussed  it.  ...  Eight  states  have  exercised  their  sove- 
reignty in  ratifying  it.  Let  us  try  it.  Experience  is  the  best  test.  It 
will  bear  equally  on  all  the  states,  from  New  Hampshire  to  Georgia. 
...  I  consider  congress  as  ourselves,  as  our  fellow-citizens,  and  no 
more  different  from  us,  than  our  delegates  in  the  state  legislature." 
[III.  Ell.  Deb.  636-7.] 

JOHN  MARSHALL,  the  great  jurist,  afterwards  for  many  years  the 
distinguished  chief  justice  of  the  federation,  said,  "When  the  govern- 


VIRGINIA  FEDERALIZES   HERSELF.  109 

ment  is  drawn  from  the  people,  and  depending  on  the  people  for  its 
continuance,  oppressive  measures  will  not  be  attempted,  as  they  will 
certainly  draw  on  their  authors  the  resentment  of  those  on  whom  they 
depend.  On  this  government,  thus  depending  on  ourselves  for  its 
existence,  I  will  rest  my  safety.  .  .  .  United  we  are  strong  —  divided 
we  fall."  [III.  Ell.  Deb.  420.]  "If  you  adopt  it,  what  shall  restrain 
you  from  amending  it,  if,  in  trying  it,  amendments  shall  be  found 
necessary.  The  government  is  not  supported  by  force,  but  depending 
upon  our  free  will.  When  experience  shall  show  us  any  inconvenience, 
we  can  correct  it.  ...  Let  us  try  it,  and  keep  our  hands  free  to  change 
it  when  necessary."  In  reference  to  the  alleged  fear  that  "  congress 
may  prostitute  their  powers  to  destroy  our  liberties,"  he  said,  "  This 
goes  to  the  destruction  of  all  confidence  in  agents."  And,  referring 
to  Virginia's  right  to  "  resume  "  her  powers,  if  abused,  he  said,  it  is 
"  a  maxim  that  those  who  give  may  take  away.  It  is  the  people  that 
give  power,  and  can  take  it  back.  What  shall  restrain  them  1  They 
are  the  masters  who  give  it,  and  of  whom  the  servants  hold  it."  Re- 
plying to  Mr.  Henry,  as  to  the  concurrent  powers  of  taxation,  he  said  : 
"  It  is  an  absurdity,  says  the  worthy  member,  that  the  man  should 
obey  two  masters,  —  that  the  same  collector  should  gather  taxes  for 
the  general  government,  and  the  state  legislature.  Are  they  not  both 
the  servants  of  the  people  ?  Are  not  congress  and  the  state  legis- 
latures the  agents  of  the  people,  and  are  they  not  to  consult  the  good 
of  the  people?"  [Ibid.  227,  233.]  And  while  defending  the  federal 
jurisdiction  of  cases  between  a  state  and  citizens  of  another  state 
against  the  vehement  attacks  of  Henry  and  Mason,  he  said  he  hoped 
that  no  one  would  "  think  that  a  state  would  be  called  at  the  bar  of 
the  federal  court.  ...  It  is  not  rational  to  suppose  that  the  sovereign 
power  should  be  dragged  before  a  court."  [Ibid.  555.] 

Gov.  RANDOLPH,  MR.  CORBIN,  and  the  MESSRS.  NICHOLAS,  all  able 
statesmen,  explained  the  new  system  substantially  to  the  same  effect. 
Said  RANDOLPH  :  "  If  you  say  that  notwithstanding  the  most  express 
restrictions,  they  [congress]  may  sacrifice  the  right  of  the  states,  then 
you  establish  another  doctrine,  —  that  the  creature  can  destroy  the 
creator,  which  is  the  most  absurd  and  ridiculous  of  all  doctrines." 
[Ibid.  363.]  Indeed  no  advocate  ever  seemed  to  doubt  that  (as  Mad- 
ison stated)  they  were  making  "a  government  of  a  federal  nature, 
consisting  of  many  co-equal  sovereignties."  [Ibid.  381.] 

"Consolidation."  —  A  few  remarks  and  extracts  on  this  subject 
may  be  instructive.  The  statesmen  were  then,  as  now,  men  of  the 
people,  speaking  in  common  parlance  alike  on  the  hustings  and  in 
legislative  debate.  In  making  charges  against  the  new  system,  one 
said,  the  government;  another,  the  union;  and  a  third,  the  states, 


110  FEDERALIZ  ATION. 

would  be  "  consolidated  "  by  it,  —  all  meaning  substantially  the  same 
thing,  though  "government,"  "union,"  and  "states,"  are  entirely  dif- 
ferent entities.  It  was  the  "states"  that  the  system's  defenders 
thought  safe  from  "consolidation,"  while  they  really  desired  this 
"  consolidation  "  for  the  "  union ; "  that  is  to  say,  the  making  of  it 
more  solid,  strong,  and  enduring,  or,  in  other  words,  "  a  more  perfect 
union  "  —  to  use  the  phrase  of  the  preamble  —  than  the  previous  one. 
And  this  is  evidently  what  the  convention  meant,  in  the  letter  of 
Washington,  written  by  their  "  unanimous  order,"  reporting  their  plan 
to  congress,  by  the  expression :  "  We  kept  steadily  in  view  ...  the 
consolidation  of  our  union ; "  for  the  said  convention  had  just  framed 
Article  VII.  —  the  one  characterizing  the  system,  which  declared  that 
the  constitution  was  to  be  established  by,  and  "  between  the  states, 
ratifying  the  same,"  through  their  respective  conventions. 

In  fact,  no  one  favored  the  consolidation  of  the  states ;  but  many 
feared  and  charged  that  the  powers  and  means,  and  alleged  supreme 
discretion  of  the  new  government,  would  enable  it  gradually  to  sup- 
plant the  state  governments,  and  degrade  the  states  themselves  to 
provinces  or  municipalities,  subject  to  its  imperial  will. 

Said  CHANCELLOR  PENDLETON,  the  president,  in  reply  to  Henry : 
.  .  .  "But  it  is  represented  to  be  a  consolidated  government,  .  .  . 
which  so  extensive  a  territory  as  the  united  states  cannot  admit  of, 
without  terminating  in  despotism.  If  this  be  such  a  government,  I 
will  confess,  with  my  worthy  friend,  that  it  is  inadmissible."  .  .  .  He 
then  proceeded  to  show  that  it  is  not  such  a  government,  and  cannot 
be  changed  to  such  a  one.  "It  is,"  said  he,  "the  interest  of  the 
federal  to  preserve  the  state  governments.  .  .  .  Unless  there  be  state 
legislatures  to  continue  the  existence  of  congress,  and  preserve  order 
and  peace  among  the  inhabitants,  this  general  government,  which 
gentlemen  suppose  will  annihilate  the  state  governments,  must  itself 
be  destroyed."  [Ibid.  40.]  Said  HENRY  LEE,  of  Westmoreland,  on 
the  same  occasion  :  "  If  this  were  a  consolidated  government,  ought  it 
not  to  be  ratified  by  a  majority  of  the  people,  as  individuals,  and  not 
as  states  1  Suppose  Virginia,  Connecticut,  Massachusetts,  and  Penn- 
sylvania had  ratified  it ;  these  four  states,  being  a  majority  of  the 
people  of  America,  would,  by  their  adoption,  have  made  it  binding  on 
all  the  states,  had  this  been  a  consolidated  government.  But  it  is 
only  the  government  of  those  seven  states  who  have  adopted  it.  If 
the  honorable  gentleman  [Mr.  Henry]  will  attend  to  this,  we  shall 
hear  no  more  of  consolidation."  [Ibid.  180.] 

MADISON  expressed  the  same  views  [Ibid.  94,  96 ;  Federalist,  Art. 
39],  so  with  the  Messrs.  Nicholas,  Gov.  Randolph,  and  others ;  but  as 
no  friend  of  the  system  dissented,  further  quotation  is  unnecessary. 


VIRGINIA  FEDERALIZES  HERSELF.  Ill 

What  Virginia  meant  by  "we,  the  People."  —  CHANCELLOR  PEN- 
DLETOX  said  :  "  This  constitution  was  transmitted  to  congress  by  that 
convention  ;  by  the  congress  transmitted  to  the  legislature ;  by  them 
recommended  to  THE  PEOPLE.  The  people  have  sent  us  hither  to  de- 
termine whether  this  government  be  a  proper  one  or  not."  [III.  Ell. 
Deb.  6.]  Was  this  "  the  people  "  of  the  united  states  1  The  reply  of 
HENRY  LEE,  of  Westmoreland,  to  Patrick  Henry,  is  instructive  and 
decisive.  The  latter  had  demanded  :  "  Who  authorized  them  [the 
convention]  to  speak  the  language  of  we,  the  people,  instead  of  we,  the 
states  ?  States  are  the  characteristics  and  the  soul  of  a  confederation. 
If  the  states  be  not  the  agents  [actors]  of  this  compact,  it  must  be 
one  great,  consolidated,  national  government,  of  the  people  of  all  the 
states."  [Ibid.  22.]  Said  Lee  in  reply  :  "This  system  is  submitted  to 
the  people  for  their  consideration,  because  on  them  it  is  to  operate,  if 
adopted.  It  is  not  binding  on  the  people  until  it  becomes  their  act. 
It  is  now  submitted  to  the  people  of  Virginia.  If  we  do  not  adopt  it, 
it  will  always  be  null  and  void  as  to  us"  [Ibid.  42.] 

GEORGE  NICHOLAS  said,  the  time  is  come  when  "this  state  is  to 
decide  this  important  question  of  rejecting  or  receiving  this  plan  of 
government."  [Ibid.  7.]  Gov.  RANDOLPH  said  :  "  Were  I  convinced 
that  the  accession  of  eight  states  did  not  render  our  accession  also 
necessary  to  preserve  the  union,  I  would  not  accede  till  it  should  be 
amended."  [Ibid.  67.]  ZACHARIAH  JOHNSON  said,  "  the  great  and  wise 
state  of  Massachusetts  has  taken  this  step  ;  the  state  of  Virginia  might 
safely  do  the  same."  [Ibid.  649.]  MR.  STEPHEN  said,  "  we  are  about  to 
determine  whether  we  shall  be  one  of  the  united  states  or  not."  [Ibid. 
644.]  JAMES  INNES  said,  "  eight  states  have  exercised  their  sovereignty 
in  ratifying  it.  ...  Let  us  try  it.  Experience  is  the  best  test."  [Ibid. 
636-7.]  JOHN  MARSHALL,  as  we  have  seen,  called  the  state  "the 
sovereign  power."  [III.  Ibid.  535.]  And  JAMES  MADISON  said,  "each 
state,  in  ratifying  the  constitution,  is  considered  as  a  sovereign  body," 
and  "  no  state  is  bound  by  it  without  its  own  consent"  [III.  Ibid.  94  ; 
Fed.  No.  39.] 

But  enough  has  been  quoted,  the  arguments  of  the  constitutionists 
being  all  to  the  same  purpose.  The  contest  was  long  and  animated. 
The  enemies,  by  the  false  ascriptions  that  in  subsequent  years  were 
made  so  attractive  by  the  logic  and  eloquence  of  a  Webster,  though 
overwhelmingly  beaten  in  argument,  were  barely  overcome  in  voting, 
—  the  majority  for  ratification  being  only  10  in  a  house  of  168.  The 
enacting  words  of  the  ordinance  are  as  follows  :  "  We,  the  delegates 
of  the  people  of  Virginia,  duly  elected,  .  .  .  and  now  met  in  con- 
vention, ...  in  the  name  and  behalf  of  the  people  of  Virginia, 
do,  by  these  presents,  assent  to,  and  ratify  the  constitution, 


112 


FEDERALIZATION. 


recommended  on  the  17th  day  of  September,  1787,  by  the  federal 
convention,  for  the  government  of  the  united  states,  hereby  announcing 
to  all  those  whom  it  may  concern,  that  the  said  constitution  is  binding 
upon  the  said  people,  according  to  an  authentic  copy  hereto  annexed. 
Done  in  convention  this  26th  day  of  June,  1788." 

"  The  said  constitution  "  then,  and  by  that  act,  became  "  binding 
upon  the  said  people "  of  Virginia.  She  then,  by  her  own  peculiar 
and  exclusive  will,  gave  that  constitution  of  government  all  the  life 
and  jurisdiction  it  ever  had  or  could  have  in  Virginia.  Nothing 
could  be  plainer.  Now,  is  it  not  incredible  that  the  statesmen, 
judges,  and  historians,  of  the  Massachusetts  school,  should  ignore  or 
suppress  the  sovereign  act  of  Virginia  (and  the  similar  one  of  Massa- 
chusetts), and  assert  that  the  nation  made  the  constitution,  and  that 
it  was  not  made  by  the  people  of  the  several  states'?  They  also 
ignore  or  suppress  the  all-important  fact,  that  the  thirteen  states  were, 
at  that  moment,  under  a  solemn  compact  —  all  with  each  and  each 
with  all  —  that  "  each  state  retains  its  sovereignty,  freedom,  and  inde- 
pendence," and  hence  that  they  did  not  and  could  not  act  otherwise 
than  as  sovereigns,  and  that  no  aggregate  people  did  or  could  exist, 
with  authority  to  put  a  general  constitution  in  force  in  and  over  one 
of  these  states.  If  thirteen  sovereign  states  did,  a  sovereign  nation 
did  not,  then  exist.  If  the  former  did  then  dispense  power,  the  latter 
did  not. 

Making  Assurance  doubly  sure.  —  Furthermore,  Virginia,  in  her 
absolutely  sovereign  action  by  convention,  aiming  to  guard  against 
those  dangers  to  her  integrity,  which  Massachusetts  had  been  so  care- 
ful to  forefend,  and  which  she  herself  was  so  earnestly  premonished 
of,  seconded  the  demand  of  Massachusetts  on  the  states  for  amend- 
ments, as  New  Hampshire  simultaneously  did,  —  the  main  one  being 
"that  each  state  shall  respectively  retain  every  power,  jurisdiction,  and 
right,  which  is  not,  by  this  constitution,  delegated  to  the  united 
states."  This,  somewhat  modified  in  language,  though  not  in  import, 
was  afterwards  adopted  by  the  states.  Again,  the  convention,  speak- 
ing with  direct  reference  to  federal  functionaries,  declared  "  that  all 
power  is  invested  in,  and  derived  from,  the  people ;  and  that  magis- 
trates are,  therefore,  their  trustees  and  agents,  at  all  times  amenable 
to  them."  And,  finally,  she  embodied  in  the  ordinance  of  ratification, 
still  speaking  for  herself,  the  following  declaration  :  "  That  the  powers 
granted  under  the  constitution,  being  derived  from  the  people  of  the 
united  states  [may]  be  resumed  by  them,  whenever  the  same  shall  be 
perverted  to  their  injury  or  oppression."  [I.  Ell.  Deb.  327.] 

Her  ideas  were,  in  short,  that  all  power  is  in  the  people ;  the  peo- 
ple are  states ;  each  state  retains  all  she  does  not  delegate ;  all  mag- 


VIRGINIA  FEDERALIZES  HERSELF.  113 

istrates  are  their  trustees  and  agents ;  and  the  people  that  delegate 
powers  may  withdraw  them.  These  truths  are  fundamental  and 
sacred ;  they  are  in  all  bills  of  rights ;  they  are  state  sovereignty,  and 
only  mendacity  itself  can  unblushingly  deny  them  ! 

The  last  above  quoted  passage,  Judge  Story,  in  his  "  Commenta- 
ries," uses  as  a  leading  proof  that  these  "  powers  "  are  "  derived  from 
the  people  "  as  a  nation,  when,  as  he  knew,  every  word  and  action  of 
Virginia  contradicts  it ;  and  the  passage  itself  is  susceptible  of  no 
such  interpretation,  —  the  assertion  being,  as  the  fact  is,  that  the 
"  powers  "  are  "  derived  from  the  people  of  the  .  .  .  states."  All  the 
states  —  including  Oregon,  Maine,  Texas,  Alaska,  Greenland,  and 
Patagonia  —  "  resuming  "  —  or  "  reassuming"  as  New  York  has  it  — 
"  the  powers  "  delegated  by  Virginia,  is  a  solecism,  which  would  be 
amusing  were  it  not  a  subject  of  deep  regret. 

Such  perversions  are  hardly  entitled  to  respectful  exposure ;  but 
let  us  plod  patiently  on.  Look  at  the  ludicrous  position  and  silly  act 
these  Massachusetts  philosophers  attribute  to  Virginia,  as  well  as  to 
their  own  state.  In  this  trying  and  solemn  hour,  when  high  debate 
was  raging,  and  all  hearts  were  fervently  wishing  to  secure  her  "  pearl 
of  great  price,"  -  —  sovereignty,  and  the  freedom  of  her  children,  and 
her  children's  children,  against  consolidation  and  arbitrary  power, 
Virginia,  by  her  great  statesmen  and  lawyers  —  "  and  there  were 
giants  in  those  days  "  —  forgot  herself,  and  her  simultaneous  sove- 
reign act,  and  declared  that  the  nation  gave,  and  could  take  away,  the 
powers  granted.  While  denying  and  guarding  against  it,  she  con- 
fessed an  outside  sovereigntj^  that  destroyed  her.  While  engaged  in 
preserving  her  political  life,  she  committed  the  most  inconsistent  and 
remarkable  suicide  in  history ! 

Now  let  us  conclude  the  case  of  Virginia,  by  contemplating  for  a 
moment  the  conduct  of  Massachusetts  towards  her,  as  it  will  appear 
in  the  pages  of  our  Gibbon,  —  if  she  be  sponsor  for  her  misteaching 
sons,  and  fail  to  lead,  in  restoring  the  commonwealths  to  their  old 
status  and  supremacy.  Both  foreboded  the  same  dangers.  They 
asserted,  acted  with,  and  secured  their  sovereignty  in  the  same  mode, 
—  the  latter  leading  the  way.  They  pledged  solemn  faith  for  mutual 
protection,  declaring  and  guaranteeing  each  other  to  be  "  sovereign, 
free,  and  independent." 

Virginia  kept  the  faith  !  She  was  incapable  of  doing  otherwise.  But 
Massachusetts,  to  promote  selfish  ends,  became  the  Peter  the  Hermit 
of  a  new  crusade.  She  perverted  the  faith  and  the  solemn  compacts 
of  the  fathers,  inflamed  the  North  to  hunger  and  thirst  for  Southern 
carnage  and  blood,  and  finally  led  an  overwhelming  host  to  dragoon 
the  South  into  submission,  and  to  darken  her  sunny  landscapes  with 

8 


114 


FEDERALIZATION. 


desolation  and  mourning.  "The  land  was  as  the  garden  of  Eden 
before  her,  and  behind  her,  a  desolate  wilderness  !  "  Yes ;  she  issued 
forth  from  her  own  unassailed  and  unbroken  walls,  which  shielded  her 
own  plenty  and  peace,  and,  like  a  demon  of  destruction,  razed  Vir- 
ginia's citadel  to  the  earth,  and  drove  the  ploughshare  of  ruin  through 
all  its  foundations ! 


CHAPTEE  IX. 

SOUTH  CAROLINA  AND  GEORGIA  FEDERALIZE  THEMSELVES. 

IN  South  Carolina,  the  new  system  was  strongly  opposed,  and  much 
discussed,  while  in  Georgia,  the  accession  was  ready  and  unreluc- 
tant.     Let  us  take  first  the  case  of 

SOUTH  CAROLINA. 

The  Eighth  to  Ratify  —Vote,  149  to  73  —  date,  May  23, 1783.  — 

Not  less  decisively  speaks  the  record  of  this  state.  All  her  sons  were 
opposed  to  any  interference  with  state  sovereignty,  —  the  enemies  of 
the  new  system  charging  danger,  and  the  friends  declaring  the  fear 
to  be  groundless.  Rawlins  Lowndes  was  the  leading  opponent.  So 
earnest  was  he,  that,  seeming  to  look  forward  to  the  lost  liberties  of 
his  state,  to  justify  his  opposition  and  prove  his  words  of  warning  true, 
he  wished  his  epitaph  to  be  :  "  Here  lies  the  man  that  opposed  the 
constitution,  because  it  was  ruinous  to  the  liberty  of  America."  Were 
he,  Patrick  Henry,  Luther  Martin,  and  the  other  opponents,  wiser 
than  the  rest  of  the  fathers  1  Did  they  really  find  the  defects  and 
dangers  they  charged]  Or  did  they  fear  the  alleged  propensities 
of  the  Northern  people,  and  the  perversions  of  their  expounding 
statesmen  1 

The  leading  constitutionists  were  Charles  Pinckney,  General  C.  C. 
Pinckney,  John  Rutledge,  Pierce  Butler,  Edward  Rutledge,  J.  J. 
Pringle,  and  others.  They  encountered  and  overthrew  the  same  kind 
of  opposition,  which,  as  we  have  seen,  was  rife  in  the  other  states.  The 
discussion  took  place  both  in  the  legislature  and  the  convention. 

The  Explanation  of  the  System  to  her.  —  CHARLES  PINCKNEY, 
a  member  of  both  federal  and  state  conventions,  and  one  of  her  most 
distinguished  statesmen,  said  that  "  all  power  of  right  belongs  to  the 
people ;  that  it  flows  immediately  from  them,  and  is  delegated  to  their 
officers  for  the  public  good ;  that  our  rulers  are  the  servants  of  the 
people,  created  for  their  use,  and  amenable  to  their  will."  [IV.  Ell. 
Deb.  319.]  A  "distinguishing  feature  in  our  union,"  said  he,  "is  its 


116  FEDERALIZATION. 

division  into  individual  states,  differing  in  extent  of  territory,  man- 
ners, population,  and  products."     [Ibid.  323.] 

He  further  said,  the  condition  of  inter-state  and  foreign  commerce 
made  necessary  "  some  general  and  permanent  system,  which  should 
at  once  embrace  all  interests,  and,  by  placing  the  states  on  firm  and 
united  ground,  enable  them  effectually  to  assert  their  [not  the  nation's] 
commercial  rights."  [Ibid.  254.]  He  said  further,  there  is  an  au- 
thority "  absolute  and  uncontrollable,"  "  from  which  there  is  no  ap- 
peal," —  "  the  sovereign  or  supreme  power  of  the  state ; "  and  that 
"  with  us  the  sovereignty  of  the  union  is  with  the  people "  [Ibid. 
327],  meaning,  with  Madison,  the  people  of  the  states  whose  creation 
the  government  was  to  be,  and  who  were  then  delegating  "  powers  " 
to  the  said  creation.  For  example,  he  said  "  the  states  ought  not  to 
entrust  important  rights  "  to  one  legislative  house,  and  that,  therefore, 
the  convention  thought  it  "  their  duty  to  divide  the  legislature  into 
two  branches,  and,  by  a  limited  revisionary  power,  to  mingle  in  some 
degree  the  executive  in  their  proceedings."  [Ibid.  256.] 

Furthermore,  he  cited  approvingly  the  contention  of  the  small 
states  in  the  federal  convention,  "  that  as  the  states  were  the  pillars 
upon  which  the  general  constitution  must  ever  rest,  their  state  gov- 
ernments must  ever  remain  ;  that  however  they  may  vary  in  point 
of  territory  or  population,  as  political  associations  they  were  equal." 
[Ibid.  256.] 

And,  finally,  he  characterized  the  new  system  as  "  a  federal  repub- 
lic," and  said  :  "To  what  limits  such  a  republic  might  extend,  or  how 
far  it  is  capable  of  uniting  the  liberty  of  a  small  commonwealth  with 
the  safety  of  a  peaceful  empire ;  or  whether,  among  co-ordinate  powers, 
dissensions  and  jealousies  would  not  arise,  which,  for  want  of  a  com- 
mon superior,  might  proceed  to  fatal  extremities,  are  questions  upon 
which  he  did  not  recollect  the  example  of  any  nation  to  authorize  us 
to  decide,  because  the  experiment  has  never  yet  been  fairly  made. 
We  are  now  about  to  make  it  upon  an  extensive  scale,  and  under  circum- 
stances so  promising  that  he  considered  it  the  fairest  experiment  that 
had  ever  been  made  in  favor  of  human  nature."  [Ibid.  262.]  It  is 
beyond  question,  then,  that  Charles  Pinckney  considered  the  states 
as  "  co-ordinate  powers,"  having  no  "  common  superior."  No  "  nation 
of  people,"  distributing  their  powers  between  their  general  govern- 
ment and  their  several  state  governments  was  known  to  him  ! 

GENERAL  C.  C.  PINCKNEY,  a  member  of  both  conventions,  after- 
wards in  several  high  offices,  and  finally  the  federal  party's  candidate 
for  the  presidency,  said,  near  the  close  of  the  federal  convention,  after 
the  character  of  the  new  constitution  had  been  agreed  on,  to  wit,  on 
September  3,  1787  :  "The  first  legislature  will  be  composed  of  the 


S.' CAROLINA  AND  GEORGIA  FEDERALIZE  THEMSELVES.     117 

ablest  men  to  be  found.  The  states  will  select  such  to  put  the  gov- 
ernment into  operation."  [V.  Ell.  Deb.  506.]  He  here  recognized 
what  the  constitution  did,  viz.,  that  the  states,  as  parties  to  and  act- 
ors in  the  new  system,  were  to  govern  themselves ;  that  is  to  say, 
they  —  being  republics  —  were,  of  original  right,  to  elect  senators, 
representatives,  and  president,  who,  as  agents  of  the  said  states,  were, 
with  such  functionaries  as  they  should  provide  for  and  appoint,  to 
govern,  using  the  "  powers  "  "  delegated  "  or  entrusted  to  them  for  that 
purpose  by  the  said  states  —  the  said  senators  to  be  elected  by  the 
respective  legislatures  of  the  states,  and  the  representatives  and  presi- 
dent, pro  tanto,  by  the  respective  peoples  thereof.  This  is  precisely 
our  system,  —  a  union  of  self-governing  states.  Another  remark  of 
General  Pinckney  in  the  federal  convention  is  apposite.  Mr.  Martin 
moved  to  vary  the  article  relating  to  the  importation  of  certain  per- 
sons, so  as  to  allow  a  prohibition  or  tax.  Mr.  Ellsworth  remarked 
that  "  the  states  were  the  best  judges  of  their  particular  interest.  The 
old  confederation  had  not  meddled  with  this  point,  and  he  did  not  see 
any  greater  necessity  for  bringing  it  within  the  policy  of  the  new  one." 
Mr.  Charles  Pinckney  said  if  this  is  done  "  South  Carolina  can  never 
receive  the  plan."  General  Pinckney  said  it  would  be  unjust  "tore- 
quire  South  Carolina  and  Georgia  to  confederate  on  such  unequal 
terms."  [V.  Ell.  Deb.  456,  et  seq.']  We  find,  then,  that  he  thought 
—  after  the  federal  plan  had  been  decided  on,  to  wit,  on  the  26th  of 
August,  1787 — that  South  Carolina  and  Georgia  were  "to  confed- 
erate "  with  the  other  states  on  "  terms." 

Let  us  now  see  what  he  afterwards  said  in  the  legislature  of  South 
Carolina.  He  stated  the  objects  of  the  federal  convention  to  be  "  to 
strengthen  the  union,"  and  "  give  greater  powers  to  the  federal  gov- 
ernment." To  the  charge  that  the  federal  convention  had  exceeded 
its  powers,  he  replied  that  "  the  present  constitution  is  but  a  propo- 
sition, which  the  people  may  reject;"  but  he  "conjured  them  to 
reflect  seriously  before  they  did  reject  it,  as  he  did  not  think  our  state 
would  obtain  better  terms  by  another  convention."  Terms  of  union 
between  states,  again  !  Said  he  further  :  "  The  delegations  of  Jersey 
and  Delaware  .  .  .  acquiesced  in  it ; "  and  so  satisfied  are  "  the  peo- 
ple of  those  states,  that  their  respective  conventions  have  unanimously 
adopted  the  constitution."  [IV.  Ell.  Deb.  282.] 

His  idea  that  communities  as  such,  and  not  the  aggregate  people  of 
them,  were  the  constituents  of  the  union,  is  indicated  in  all  the  above 
extracts,  but  more  notably  in  the  following:  "The  Southern  states 
are  weak ;  ...  we  are  so  weak  by  ourselves,  we  could  not  form  a 
union  strong  enough  for  effectually  protecting  each  other.  Without 
union  with  the  other  states,  South  Carolina  must  soon  fall.  .  .  . 


118  FEDERALIZATION. 

Should  we  not  endeavor  to  form  a  close  union  with  the  Eastern  states, 
who  are  strong  1  ...  If  our  government  is  to  be  founded  on  equal 
compact,  what  inducement  can  they  possibly  have  to  be  united  with 
•us,  if  we  do  not  grant  them  some  privileges  with  regard  to  their 
shipping  1  Or,  supposing  they  were  to  unite  with  us  without  having 
these  privileges,  can  we  flatter  ourselves  that  such  union  would  be 
lasting?"  [Ibid.  283-4. J  Again:  "We  do  not  enter  into  treaties 
as  separate  states,  but  as  united  states ;  and  all  the  members  of  the 
union  are  answerable  for  the  breach  of  treaty  by  any  one  of  them." 
[Ibid.  279.] 

The  following  is  decisive  proof  of  General  Pinckney's  belief  that  the 
states,  as  political  communities,  were  sovereign,  and  acted  as  such  in 
forming  the  union :  "  It  is  admitted  on  all  hands  that  the  general 
government  has  no  powers  but  what  are  expressly  granted  by  the  con- 
stitution, and  that  all  rights  not  expressed,  were  reserved  by  the  sev- 
eral states"  [Ibid.  286.]  The  same  principle  is  repeated  as  follows  : 
"  The  general  government  has  no  powers  but  what  are  expressly 
granted  to  it ;  therefore  it  has  no  power  to  take  away  the  liberty  of 
the  press ;  ...  by  delegating  express  powers,  we  certainly  reserve  to 
ourselves  every  power  and  right  not  mentioned  in  the  constitution." 
[Ibid.  315.]  See  also  p.  10  supra. 

These  passages,  from  the  indelible  record,  show  that  General 
Pinckney  regarded  the  constitution  as  "  a  compact  "  between  states ; 
the  system  provided  for,  as  a  union  or  "  confederation  "  of  states,  and 
the  states  themselves,  as  the  sovereign  delegators  and  reservers  of 
power.  He  knew  the  people,  as  states,  to  be  acting  with  entire  vol- 
untariness,  and,  as  separate  sovereigns,  ratifying  what  they,  as  collec- 
tive sovereigns,  had  framed. 

But  the  perverters,  to  support  their  false  theory  that  a  sovereign 
nation  made  the  union,  have  culled,  from  the  very  midst  of  the  above 
expressions,  the  statement  of  General  Pinckney  that  the  Declaration  of 
Independence  proves  that  "  there  never  was  any  individual  sovereignty 
of  the  several  states."  [Ibid.  301.]  In  a  future  chapter,  I  shall  show 
that  General  Pinckney  probably  referred  to  the  government  incorpo- 
rated in  the  state  constitution,  as  the  state,  for  this  to  the  most  of 
people  was  the  only  visible  embodiment  of  the  idea  of  a  state ;  it 
acted  in  every  manner  of  state  action  ;  and,  in  common  parlance,  it 
was  called  the  state,  and  was  accredited  with  sovereignty,  particularly 
by  the  functionaries  of  it ;  while  in  reality  it  was  a  mere  agency,  the 
sovereignty,  or  right  of  government,  residing  permanently  in  the 
society  of  people.  If  he  did  not  mean  as  I  indicate,  he  was,  first, 
"  blowing  hot  and  cold  with  the  same  mouth ;  "  second,  speaking 
absurdly,  for  the  states,  as  political  bodies,  occupied  the  whole  ter- 


S.  CAROLINA  AND  GEORGIA  FEDERALIZE  THEMSELVES.     119 

ritory,  and  included  and  controlled  all  the  people;  and  they  were 
then  placing  over  the  said  people,  absolutely,  their  new  "  supreme 
law ; "  third,  mendacious,  for  the  states  had  then  a  solemn  league 
and  covenant,  declaring  and  guaranteeing  that  "  each  state  retains  her 
sovereignty ;  "  and  not  only  was  George  III.  required  by  the  Ameri- 
can commissioners  to  "  acknowledge "  on  this  basis,  as  he  did,  but 
the  fathers  themselves,  in  establishing  the  new  plan,  acted  upon 
it,  as  they  were  compelled  to  do,  being  citizens  and  subjects  of 
such  sovereignties ;  fourth,  traitorous,  for,  while  assuring  his  sove- 
reign that  the  new  plan  was  her  "  compact,"  her  "  confederation," 
her  "  supreme  law,"  he  was,  Judas-like,  aiming  to  place  her  under  a 
yoke! 

JOHN  RUTLEDGE,  a  member  of  both  federal  and  ratifying  conven- 
tions, and  afterwards  chief  justice  of  the  union,  referring  to  a  remark 
of  Mr.  Lowndes,  said  that,  instead  of  "  the  sun  of  the  country  being 
obscured  by  the  new  constitution,  ...  the  sun  of  this  state,  united 
with  twelve  other  suns,  would  exhibit  a  meridian  radiance  astonishing 
to  the  world."  [Ibid.  312.]  He  said,  in  the  federal  convention,  in 
reference  to  the  proposal  to  give  congress  the  power  to  negative  all 
state  laws,  it  might  think  interfered  "  with  the  general  interests  and 
harmony  of  the  union  :  "  If  nothing  else,  this  alone  would  damn,  and 
ought  to  damn,  the  constitution.  Will  any  state  ever  agree  to  be 
bound  hand  and  foot  in  this  manner?  It  is  worse  than  making  mere 
corporations  of  them,  whose  by-laws  would  not  be  subject  to  this 
shackle."  [V.  Ell.  Deb.  368.] 

HON.  J.  J.  PRINGLE,  attorney-general,  said  the  treaties  "  will  affect 
the  individuals  equally  of  all  the  states.  If  the  president  and  senate 
make  such  as  violate  the  fundamental  laws,  and  subvert  the  constitu- 
tion, or  tend  to  the  destruction  of  the  happiness  and  liberty  of  the 
states,  the  evils  .  .  .  will  be  removed  as  soon  as  felt,  as  those  who  are 
oppressed  have  the  power  and  means  of  redress  ;  "  that  is  to  say,  the  states 
are  absolute,  and  have  the  control  of  the  powers  they  delegate,  and 
the  unlimited  right  of  self-defence.  [Ibid.  270.] 

Hox.  EDWARD  RUTLEDGE,  a  signer  of  the  Declaration  of  Indepen- 
dence, and  one  of  the  governors  of  the  state,  said,  in  the  legislature : 
"  But  the  gentleman  [Mr.  Lowndes]  has  said  that  there  were  points  in 
this  new  confederation  which  would  endanger  the  rights  of  the  people." 
He  then  proceeded  to  speak  of  the  states  as  the  parties  to  and  the 
actors  in  "  this  new  confederation ;  "  and  the  functionaries  thereof,  as 
representatives  acting  with  a  "  trust."  [Ibid.  276.] 

"We,  the  People"  of  South  Carolina.  —  The  principal  debate, 
which  is  preserved,  took  place  in  the  legislature,  which  finally  resolved, 
unanimously,  "  that  a  convention  of  the  people  should  be  called  for 


120  FEDERALIZATION. 

the  purpose  of  considering,  and  ratifying  or  rejecting,  the  constitution 
framed  for  the  united  states."  [Ibid.  316.] 

ALEXANDER  TWEED  said  :  "  The  constitution  now  lies  before  us,  to 
wait  our  concurrence  or  disapprobation.  We,  sir,  as  citizens  and  free- 
men, have  an  undoubted  right  of  judging  for  ourselves."  [Ibid.  333.] 

HON.  JACOB  READ  "urged  a  concurrence  with  those  states  which 
were  in  favor  of  the  new  constitution."  [Ibid.  286.] 

CHARLES  PINCKNEY  said :  "  We  are  called  upon  to  execute  an  im- 
portant trust,  —  to  examine  the  principles  of  the  constitution  now 
before  you,  and,  in  the  name  of  the  people,  to  receive  or  reject  it." 
[Ibid.  332.] 

But  enough  has  been  quoted  ;  for  there  was  not  a  word  of  dissent, 
in  either  the  legislature  or  the  convention,  on  the  part  of  any  friend 
of  the  new  system.  Friend  and  foe  alike  deprecated  the  principles 
since  advocated  by  the  Massachusetts  school,  —  if  dogmas  so  unprin- 
cipled can  be  called  principles  at  all. 

The  convention  finally  ratified  the  constitution  by  a  vote  of  149  to 
73,  the  substantial  words  of  the  ordinance  being  as  follows^  "In  con- 
vention of  the  people  of  the  state  of  South  Carolina,  by  their  rep- 
resentatives, held  in  the  city  of  Charleston.  .  .  .  The  convention, 
having  maturely  considered  the  constitution  or  form  of  government 
reported  to  congress  by  the  convention  of  delegates,  .  .  .  and  sub- 
mitted to  them  by  a  resolution  of  the  legislature,  ...  in  order  to 
form  a  more  perfect  union,  establish  justice,  insure  domestic  tran- 
quillity, provide  for  the  common  defence,  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty,  .  .  .  do,  in  the  name  and  behalf 
of  the  people  of  this  state,  hereby  assent  to  and  ratify  the  said 
constitution.  Done  in  convention,  the  23d  day  of  May,  A.D.  1788." 
[I.  Ell.  Deb.  325.] 

Here  we  see  that,  by  this  act  of  ratification,  South  Carolina  estab- 
lished the  constitution  within  her  territory,  and  subjected  her  citizens 
to  its  operation,  thus  giving  its  functionaries  their  only  jurisdiction. 
As  this  jurisdiction  flows  solely  from  the  constitution,  and  is  subject 
to  it,  it  is  necessarily  subject  to  the  will  that  established  it.  There 
was  no  sign  or  hint  of  any  other  will,  —  certainly  none  of  a  national 
will.  Nay,  more,  if  the  existence  and  binding  force  of  the  said  con- 
stitution, as  the  supreme  law  of  South  Carolina,  were  ever  called  in 
question,  the  only  possible  proof  of  the  same  would  be  the  above  act 
of  ratification,  with  the  constitution  annexed.  How  absurd,  then,  it 
is  to  say  that  South  Carolina  was  not  to  be  and  remain  a  sovereign  in 
the  union. 

This  state  also  joined  Massachusetts  in  demanding  amendments  for 
the  more  complete  security  of  state  integrity  and  sovereignty,  par- 


S.  CAROLINA  AND  GEORGIA  FEDERALIZE  THEMSELVES.     121 

ticularly  the  one  declaring  that  "  THE  STATES  RETAIN  every  power  not 
expressly  .  .  .  vested  in  the  general  government."  [I.  Ell.  Deb.  325.] 
Not  one  word  of  support  is  there  in  the  records  of  this  state  for  the 
assertions  of  Dane,  Story,  Webster,  and  Curtis  !  They  are  contradicted 
in  the  most  direct  and  positive  manner ! 

GEORGIA. 

The  Fourth  to  ratify  — Vote,  unanimous  —  date,  Jan.  2, 1788.  — 

There  was  little  or  no  opposition  in  this  state,  and  no  demand  for 
amendments.  Her  convention,  being  called  to  consider  the  proposed 
plan,  and  the  accompanying  letter  and  resolutions,  "  and  to  adopt  or 
reject  any  part  or  the  whole  thereof"  [Ibid.  323],  unanimously  ratified 
the  constitution,  the  substance  of  her  ordinance  being  as  follows : 
"  Now  know  ye  that  we,  the  delegates  of  the  people  of  the  state  of 
Georgia,  in  convention  met,  pursuant  to  the  provisions  of  the  legis- 
lature aforesaid,  having  taken  into  our  serious  consideration  the  said 
constitution,  ...  by  these  presents  do,  in  virtue  of  the  powers  and 
authority  given  us  by  the  people  of  the  said  state  for  that  purpose,  for 
and  in  behalf  of  ourselves  and  our  constituents,  fully  and  entirely 
assent  to,  ratify,  and  adopt  the  said  constitution.  Done  in  con- 
vention, at  Augusta,  in  the  said  state,  on  the  2d  day  of  January, 
A.D.  1788."  [Ibid.  323.] 

As  to  Georgia,  the  constitution  of  government  was  completed  by 
this  act ;  and  it  was  done  solely  "  in  virtue  of  the  powers  and  author- 
ity "  "given  by  the  people  of  the  said  state,"  and  not  by  the  people 
of  any  nation.  This  alike  shows  that  the  phrase  "  we,  the  people," 
meant  Georgia,  and  destroys  the  whole  theory  of  the  Massachusetts 
school. 


CHAPTER  X. 
NEW  HAMPSHIRE  FEDERALIZES  HERSELF. 

THE  NINTH  TO  RATIFY  — VOTE,   57  TO  46  —  DATE,  JUNE   21,  1788, 

THIS  state,  being  the  ninth  to  ratify,  made  the  complement  re- 
quired for  the  establishment  of  the  constitution ;  for  Article  VII. 
declared  that  "the  ratification  of  the  conventions  of  nine  states  shall 
be  sufficient  for  the  establishment  of  this  constitution,  between  the 
states  so  [i.  e.  by  conventions]  ratifying  the  same."  Nine  successive 
acts  of  ratification,  then  —  i.  e.  the  acts  of  nine  separate  wills,  each 
operating  voluntarily,  and  with  a  perfect  right  to  ratify  or  reject  — 
were  to  establish  and  complete  the  constitution.  No  single  act, 
movement  or  exercise  of  will  could,  by  any  possibility,  have  done  it ; 
and  the  record  throughout  exhibits  the  action  of  nine  independent 
wills,  and  no  sign  of  a  single  and  exclusive  one.  "  The  people  "  were 
organized  as  states,  and  the  states  were  "the  people"  As  bodies-politic, 
composed  of  people,  they,  and  they  alone,  ratified.  The  idea  of 
their  unity  of  organization,  will,  and  deed,  as  a  nation,  is  entirely 
false.  Article  VII.  shows  that  ratifications  were  to  establish;  that 
states  were  to  ordain  the  ratifications;  and,  therefore,  that  the 
states  were  to  "  ordain  and  establish  this  constitution  for  the  united 
[i.  e.  associated]  states  of  America." 

New  Hampshire's  Assertion  of  her  Statehood.  —  She  was  a  re- 
public, —  that  is,  a  community  with  the  absolute  right  of  self-govern- 
ment ;  and  there  was  no  sign  of  any  authority  above  her.  The  record 
shows  that  she  acted  solely  of  her  own  motion ;  and  at  that  moment, 
the  solemn  covenant  called  the  articles  of  confederation,  bound  all  the 
states  to  the  recognition  of  her  sovereignty,  for  their  declaration  was, 
that  "  each  state  retains  her  sovereignty,  freedom  and  independence." 
[Article  II.]  Necessarily  she  was  exercising  this  sovereignty  in  mak- 
ing the  new  constitution.  She  acted  as  a  commonwealth  exclusively, 
and  no  power  on  earth  constrained  or  influenced  her.  All  the  fathers 
asserted  or  took  for  granted,  that  the  states  were  acting  in  this  sove- 
reign capacity.  Moreover,  the  people  of  New  Hampshire  had,  in 
1784,  by  social  compact,  "formed  themselves"  —  to  use  their  own 
words  —  "  into  a  free,  sovereign  and  independent  body-politic,  or  state, 


NEW  HAMPSHIRE  FEDERALIZES   HERSELF.  123 

by  the  name  of  the  state  of  New  Hampshire."  [Const.  N.  H.,  Part 
IL,  Art.  L]  This  is  the  character  by  which  she  passed,  by  name,  into 
the  union  [Fed.  Const.,  Art.  I.,  §  2],  and  her  reiteration  of  it  in  1792, 
several  years  after  the  constitution  was  established,  proves  that  she 
considered  herself  sovereign  in  the  union.  And,  indeed,  this  self- 
description  stands  to  the  present  day,  as  does  the  following  remarkable 
declaration  :  "  The  people  of  this  state  have  the  sole  and  exclusive  right  of 
governing  themselves  as  a  free,  sovereign  and  independent  state ;  and  do, 
and  forever  hereafter  shall,  exercise  and  enjoy  every  power  .  .  .  which 
is  not,  and  may  not  hereafter  be,  by  them,  expressly  delegated  to  the 
united  states  in  congress  assembled."  [Const.  N.  H.,  Bill  of  Rights. 
Art.  VII.]  And,  apparently  for  the  sake  of  greater  emphasis,  she 
declares  that  her  people  have  the  right,  whenever  they  deem  it  neces- 
sary to  prevent  the  ends  of  government  from  being  perverted,  or  to 
preserve  public  liberty,  "  to  reform  the  old,  or  establish  a  new  govern- 
ment ;  "  and  that  "  all  magistrates  and  officers  of  government "  are 
her  people's  "  substitutes  and  agents,  and  at  all  times  accountable  to 
them."  [Ibid.,  Arts.  VIII-X.] 

Here  we  have  her  self-assertion.  No  sovereign  of  Europe  could  be 
more  autocratic,  and  her  ratification  was  precisely  in  character.  Let 
us  see. 

"  We,  the  people "  of  New  Hampshire.  —  Her  convention  was 
called  to  examine,  and  to  ratify,  or  reject,  the  constitution  proposed. 
It  was  most  deliberate  in  action,  adjourning  at  one  time  for  several 
months.  But  for  this  adjournment,  and  the  timely  supervention  of  a 
general  understanding  in  regard  to  conservative  amendments,  as  well 
as  the  favorable  action  and  influence  of  other  states,  the  constitution 
would  have  been  probably  rejected.  As  it  was,  she  ratified  by  a  vote 
of  57  to  46,  —  the  substantial  words  of  her  ordinance  being  as  follows  : 
"  In  convention  of  the  delegates  of  the  people  of  the  state  of  New 
Hampshire,  June  the  21st,  1788.  The  convention,  having  impartial- 
ly discussed  and  fully  considered  the  constitution  for  the  united  states 
of  America,  reported  to  congress  by  the  convention,  .  .  .  and  sub- 
mitted to  us  by  a  resolution  of  the  general  court  of  said  state,  .  . 
do,  in  the  name  and  behalf  of  the  people  of  the  state  of  New 
Hampshire,  assent  to,  and  ratify  the  said  constitution  for  the 
united  states  of  America."  [I.  Ell.  Deb.  325.] 

The  convention  coupled  with  the  ratification  the  following,  which, 
with  other  proposed  amendments,  it  declared  to  be  indispensable  "  to 
quiet  the  apprehensions "  of  the  people  and  "  to  guard  against  an 
undue  administration  of  the  federal  government : "  "  That  it  be  ex- 
plicitly declared,  that  all  powers  not  expressly  and  particularly  dele- 
gated by  the  aforesaid  constitution,  are  reserved  to  the  several  states, 
to  be  by  them  exercised." 


124  FEDERALIZATION. 

It  is  hard  to  discover  any  ground  for  doubt  and  fear.  But  all  the 
promising  appearances,  all  the  prospective  safeguards,  and  all  the 
arguments  and  assurances  of  the  constitutionists,  could  only  "  quiet 
the  apprehensions  "  to  a  sufficient  extent  to  give  the  meagre  majority 
of  11  in  a  vote  of  103.  Suppose  Mr.  Webster,  who- was  a  native  of 
New  Hampshire,  though  adoptively  of  Massachusetts,  had,  in  those 
days,  appeared  before  her  —  even  in  the  prime  of  his  greatness  —  and 
"expounded"  the  constitution,  as  he  did  forty  or  fifty  years  later, 
to  mean  that  a  great  and  undivided  nation  were,  in  and  by  that  con- 
stitution, "  distributing  their  powers  between  their  general  government 
and  their  several  state  governments,"  and  that  New  Hampshire  was 
only  to  hold  and  wield  what  the  said  nation  "reserved"  in  the  said 
constitution,  to  her,  as  the  county,  province,  department,  pashalic, 
satrapy,  municipality,  division  or  state  of  New  Hampshire ;  suppose, 
I  say,  these  absurd  and  unprincipled  notions,  which  the  Massachu- 
setts school  profess  to  have  believed  for  the  last  thirty  or  forty  years, 
had  been  stated  by  Webster  to  New  Hampshire,  as  the  meaning  of  the 
constitution,  would  she  not  with  unanimity  have  spurned  it  from  her 
borders,  and  disowned  the  son  who  insulted  her  by  proposing  such 
degradation.  In  truth,  nobody  dared  to  advocate  such  ideas  in  those 
days.  They  appeared  as  charges  to  defeat  the  system,  and  they  well 
nigh  accomplished  the  purpose.1 

Nine  Parties  "  established  "  the  Compact.  —  The  seventh,  last 
and  characterizing  article  of  the  constitution  provides  that  nine  rati- 
fications "shall  be  sufficient  for  the  establishment  of  this  constitution 
between  the  states  so  ratifying;"  so  that  when  Delaware,  Pennsyl- 
vania, New  Jersey,  Georgia,  Connecticut,  Massachusetts,  Maryland, 
South  Carolina,  and  New  Hampshire,  had  ratified,  it  was  understood 
by  everybody  that  while,  without  nine,  the  ordinances  were  nugatory, 
with  that  number  they  were  effective ;  the  compact  was  "  estab- 
lished," and  the  federation  complete,  even  if  no  more  states  ratified. 

The  following  from  the  "  Massachusetts  Centinel "  of  June  25, 
1788,  shows  the  impressions  and  ideas  of  that  day,  viz.,  that  "the 
states  "  (to  use  Hamilton's  phrase,  heretofore  quoted)  are  the  "  essen- 
tial component  parts  of  the  union,"  —  the  pillars  upon  which  the  fed- 
eral superstructure  solely  rests ;  that  the  constitution  was  "  estab- 
lished "  and  complete  when  the  ninth  state  ratified ;  that  it  was 
established  "between  the  states,"  as  political  bodies  of  people;  and 
that  these  were  necessarily  "  the  people  of  the  united  states  : " 

"  We  felicitate  our  readers  on  the  accession  to  the  confederation  of 

1  It  should,  perhaps,  be  noted  here  that  in  March,  1788,  the  New  Hampshire  conven- 
tion stood  54  to  50  in  favor  of  rejecting  the  constitution ;  and  that  only  adjournment  for 
three  months,  with  the  growing  confidence  that  the  new  safeguards  of  freedom  pro- 
posed by  Massachusetts,  South  Carolina,  and  others,  would  prevail,  saved  it.  See 
extract  from  Va.  Gazette,  Appendix  A.,  No.  2. 


NEW  HAMPSHIRE  FEDERALIZES   HERSELF.  125 

the  stale  of  New  Hampshire,  not  only  because  it  completes  the  num- 
ber of  states  necessary  for  the  establishment  of  the  constitution,  but 
because  it  is  a  frontier,  a  neighboring,  and,  to  us,  really  a  sister  state. 
It  is  now  one  of  the  noble  pillars  of  the  great  national  dome." 

We  find  New  Hampshire,  then,  to  be  the  ninth  absolute  sovereign ; 
and  the  federation  of  states,  or  the  "  republic  of  republics,  "  to  be 
completely  established  by  the  ratifications  of  the  nine  states, 
which  are  named  and  provided  for  in  the  constitution,  as  distinct 
political  bodies,  and  as  parties  to,  and  actors  under  it. 

The  Putting  of  the  Agency  at  work.  —  After  the  states  had  thus 
established  the  constitution  as  their  frame  of  general  government,  and 
"  supreme  law,"  their  general  agency,  congress,  proceeded  to  put  the 
great  machine  in  operation.  The  following  quotations  will  bring  viv- 
idly to  us  the  ideas  of  that  day. 

It  should  be  premised  that  the  federal  convention  always  recognized 
the  political  bodies  called  states,  as  the  sole  potential  actors  in  the 
framing  and  establishing  of  the  constitution,  and  considered  them- 
selves as  the  citizens,  subjects,  representatives,  agents  and  servants  of 
the  said  states,  with  only  advisory  powers.  The  idea  of  the  fathers 
unquestionably  was,  that  the  new  government  was  not  to  operate  on 
the  political  bodies  that  were  making  it,  but  on  their  citizens,  by 
their  authority  —  the  new  arrangement  being  the  self-government 
of  the  states,  on  matters  common  to  them;  that  is  to  say,  the  govern- 
ment, by  themselves,  of  their  citizens,  through  the  instrumentality  of 
a  general  governmental  agency.  It  should  also  be  mentioned  that 
the  federal  convention,  in  their  letter  reporting  their  plan  to  congress, 
unamimously  said  the  new  system  was  "the  federal  government  of 
these  states,"  and  that  it  was  the  "delegating"  of  an  "extensive 
trust."  The  following  is  from  the  record  of  the  convention. 

"  In  convention,  Monday,  Sept.  17,  1787.  Present:  The  states  of 
New  Hampshire,  Massachusetts,  Connecticut,  Mr.  Hamilton,  from  New 
York,  New  Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North 
Carolina,  South  Carolina  and  Georgia.  .  .  .  Resolved,  That  it  is  the 
opinion  of  this  convention  that  as  soon  as  the  conventions  of  nine 
states  shall  have  ratified  this  constitution,  the  united  states,  in  congress 
assembled,  should  fix  a '  day  on  which  electors  should  be  appointed 
by  the  states  which  shall  have  ratified  the  same ;  and  a  day  on  which 
the  electors  should  assemble  to  vote  for  the  president ;  and  the  time 
and  place  for  commencing  proceedings  under  the  constitution.  That 
after  such  publication,  the  electors  should  be  appointed,  and  the 
senators  and  representatives  elected ;  that  the  electors  should  meet 
on  the  day  fixed  for  the  election  of  the  president,  and  should  transmit 
their  votes,  certified,  signed,  sealed  and  directed,  as  the  constitution 


126  FEDERALIZATION. 

required,  to  the  secretary  of  the  united  states  in  congress  assembled ; 
that  the  senators  and  representatives  should  convene  at  the  time  and 
place  assigned;  that  the  senate  should  appoint  a  president  of  the 
senate,  for  the  sole  purpose  of  receiving,  opening  and  counting  the 
votes  for  the  president ;  arid  that  after  he  shall  be  chosen,  the  con- 
gress, together  with  the  president,  should,  without  delay,  proceed  to 
execute  this  constitution.  By  unanimous  order  of  the  convention. 
George  Washington,  President."  [I.  Ell.  Deb.  16.] 

The  reader  will  please  note,  en  passant,  that  here,  and  in  the  consti- 
tution, are  positive  proof  that  the  convention  unanimously  asserted 
that  the  states,  as  bodies,  were  to  ratify  and  establish  the  constitution 
[see  the  preamble  and  Article  VII.]  ;  that  the  states,  through  electors, 
were  to  appoint  the  president  [Art.  ll.  §  1]  ;  that  the  states  were  to 
elect  the  senators  and  representatives  [Article  I.,  §§  2,  3]  ;  and 
that  this  "  congress  "  of  the  delegations  of  the  states,  "  together  with 
the  president,"  were  "  to  execute  this  constitution  "  of  the  said  states. 
Here  is  a  decisive  proof  of  the  untruth  of  the  Massachusetts  school  in 
saying  that  "  the  people,"  as  a  nation  and  not  as  states,  established 
and  put  in  effect  the  constitution. 

The  Action  of  Congress.  —  Now  let  us  see  what  action  the  congress 
of  the  states  took  when  the  ninth  state  had  ratified.  I  copy,  from  the 
Worcester  [Massachusetts]  Spy  of  July  17,  1788,  its  report  from  the 
journal  of  congress,  — my  purpose  being  alike  to  reproduce  the  sacred 
record,  and  the  impression  made  upon  the  people  of  that  day  : 

"  In  congress,  July  2,  1 788.  The  state  of  New  Hampshire  having 
ratified  the  constitution,  .  .  .  and  transmitted  to  congress  the  ratifi- 
cation, .  .  .  the  president  reminded  congress  that  this  was  the  ninth 
ratification  transmitted  and  laid  before  them;  whereupon  .  .  .  or- 
dered, that  the  ratifications  ...  be  referred  to  a  committee,  to 
examine  the  same,  and  report  an  act  for  putting  the  said  constitution 
into  operation,  in  pursuance  of  the  resolutions  of  the  late  federal  con- 
vention." [See  also  the  Journal  of  Congress,  and  I.  Ell.  Deb.  332.] 

The  said  committee  on  the  14th  of  July,  1788,  reported  an  act  for 
putting  the  constitution  into  operation,  which  was  debated  till  the 
13th  of  September,  when  congress  —  two  more  states  having  mean- 
while ratified — resolved  that,  as  "the  constitution  .  .  .  has  been 
ratified  in  the  manner  therein  declared  to  be  sufficient  for  the 
establishment  of  the  same;  and  such  ratifications,  duly  authenti- 
cated, have  been  received  by  congress,  and  are  filed  in  the  office  of 
the  secretary,  .  .  .  the  first  Wednesday  in  January  next  be  the  day 
for  appointing  electors  in  the  several  states,  which,  before  the  said  day, 
shall  have  ratified  the  said  constitution ;  that  the  first  Wednesday  in 
February  next  be  the  day  for  the  electors  to  assemble  in  their  respec- 


NEW  HAMPSHIRE   FEDERALIZES   HERSELF.  127 

tive  states,  and  vote  for  a  president ;  and  that  the  first  Wednesday  in 
March  next  be  the  time,  and  the  present  seat  of  congress  the  place, 
for  commencing  proceedings  under  the  said  constitution."  [Ibid. 
333.] 

Conformably  to  this,  their  resolve,  and  to  their  provisions  in  their 
constitution  [Art.  II.,  §  1;  Art.  I.,  §§  2,  3],  the  states  proceeded 
to  "  appoint  electors,"  and  to  elect  their  senators  and  representatives 
to  congress.  And,  on  the  4th  of  March,  1789,  proceedings  were 
commenced ;  and  Washington  having  been  unaminously  elected  presi- 
dent, "  the  congress,  together  with  the  president,"  did,  as  the  conven- 
tion advised,  "  proceed  to  execute  "  "  the  constitution  of  [i.  e.  belong- 
ing to]  the  united  [or  associated]  states" 

It  is  plain,  then,  that  "  the  people  of  the  united  states,"  as  common- 
wealths —  they  being  thus  respectively  organized  by  social  compact 
—  did  "ordain  and  establish,"  and  "proceed  to  execute,"  "  this  consti- 
tution for  the  united  states  of  America."  Thus  they  have  chosen  to 
govern  themselves  in  federal  matters.  And  liberty  is  obviously  at  an 
end,  if  they,  as  self-organized,  are  not  superior  to  the  agency  they,  in 
self-government,  create.  The  Massachusetts  school  seem  to  forget 
that  the  states  were  republics,  and  that,  to  remain  so,  they  must 
retain  the  right  of  self-government  —  not  in  part,  but  wholly ;  and 
that  this  intact  right  of  self-government  is  their  sovereignty,  and  is  the 
very  thing  that  makes  them  states,  and  not  provinces  or  municipalities. 
In  their  character  as  sovereign  states  they  acted ;  and  only  a  federa- 
tion was  possible,  unless  there  had  been  self-extinction,  or  self-degra- 
dation to  provinces  or  counties,  of  which  American  history  gives  no 
shadow  of  evidence.  The  "nation"  of  the  Massachusetts  school,  as 
well  as  the  second  social  compact  forming  such  nation,  are  mere 
figments.  It  seems  to  be  ignored  by  some  of  the  members  of  that 
school,  that  the  time  is  past,  when  intelligent  men,  and  especially 
those  who  have  investigated  the  history  of  the  constitution,  can  inno- 
cently and  creditably  reaffirm  the  dogmas  of  Story  and  Webster  on 
matters  of  constitutional  or  federal  history  and  exposition,  especially 
in  regard  to  the  nature  and  character  of  our  general  polity. 


CHAPTER  XI. 

NORTH  CAROLINA  FEDERALIZES  HERSELF. 

THE  TWELFTH  TO   KATIFY  —  KEJECTION,  AUG.   1,   1788,   BY  188  TO  88  — 
ADOPTION,   NOV.  21,  1789,   BY  193  TO  75. 

THIS  state,  which  rejected  the  constitution  at  first,  but  accepted 
it  after  she  felt  assured  of  satisfactory  amendments,  most  com- 
pletely demonstrated  the  sovereign  self-will  of  the  American  common- 
wealths, and  the  absurdity  of  the  idea  that  any  national  controlling 
power  existed. 

All  these  states  (the  people  of  which  must  have  constituted  the 
sovereign  nation,  if  there  was  one)  joined  in  declaring  that  the  com- 
monwealth called  North  Carolina  "  retained  its  sovereignty,"  and  this 
solemn  treaty-recognition  of  the  great  fact  was  in  full  force,  and  she 
acted  up  to  it,  in  the  time  and  deed  of  determining  her  will,  as  to 
ratifying  or  rejecting  the  new  federal  plan.  No  one  in  all  the  land 
pretended  to  question  her  right  to  reject,  and  remain  forever  as  inde- 
pendent as  Russia  or  France  !  The  assertion,  then,  that  a  sovereign 
nation  existed,  controlling  the  states  into  association,  is  obviously  a 
sheer  fabrication. 

Her  Idea  of  the  Union.  —  But  as  North  Carolina  only  awaited 
amendments,  and  did,  when  she  felt  sure  of  them,  ratify  the  constitu- 
tion, we  may  profitably  quote  the  explanations  of  her  chief  statesmen, 
to  get  her  idea  of  the  new  system. 

JAMES  IREDELL,  a  distinguished  jurist  and  statesman,  afterwards  on 
the  supreme  bench  of  the  union,  said  in  opposition  to  the  dogma  that 
"a  government  is  a  compact  between  the  rulers  and  the  people:" 
"This  is  held  to  be  the  principle  of  some  monarchial  governments 
in  Europe.  Our  government  is  founded  on  much  nobler  principles. 
The  people  are  known  with  certainty  to  have  originated  it  themselves. 
Those  in  power  are  their  servants  and  agents ;  and  the  people,  with- 
out their  consent,  may  new  model  their  government  whenever  they 
think  proper,  not  merely  because  it  is  oppressively  exercised,  but  be- 
cause they  think  another  form  will  be  more  conducive  to  their  welfare. 
It  is  upon  the  footing  of  this  very  principle  that  we  are  now  met  to 
consider  of  the  constitution  before  us."  [IV.  Ell.  Deb.  9.]  In  refer- 


NORTH  CAROLINA  FEDERALIZES  HERSELF.      129 

ence  to  the  federal  senate,  he  said  it  was  necessary  to  vest  "  this  [the 
treaty-making]  power  in  some  body  composed  of  representatives  of 
states,  where  their  voices  should  be  equal ;  for,  in  this  case,  the  sove- 
reignty of  the  states  is  particularly  concerned,  and  the  great  caution  of 
giving  the  states  an  equality  of  suffrage  in  making  treaties,  was  for 
the  express  purpose  of  taking  care  of  that  sovereignty,  and  attending 
to  their  interests,  as  political  bodies,  in  foreign  negotiations."  [Ibid. 
125.]  He  said,  further,  "the  senate  is  placed  there  for  a  very  valuable 
purpose  —  as  a  guard  against  any  attempt  of  consolidation,"  and  "  to 
preserve  completely  the  sovereignty  of  the  states."  [Ibid.  133.] 

WILLIAM  R.  DAVIE,  one  of  the  ablest  statesmen  produced  by  North 
Carolina,  a  member  of  both  federal  and  state  conventions,  and  after- 
wards in  several  distinguished  positions,  said,  in  the  state  convention, 
"  If  there  were  any  seeds  in  this  constitution  which  might  one  day 
produce  consolidation,  it  would,  sir,  with  me,  be  an  insuperable  objec- 
tion, I  am  so  perfectly  convinced  that  so  extensive  a  country  as  this, 
can  never  be  managed  by  one  consolidated  government.  The  federal 
committee  were  as  well  convinced  as  the  members  of  this  house,  that 
the  state  governments  were  absolutely  necessary  to  the  existence  of 
the  federal  government.  They  considered  them  as  the  great  massy 
pillars  on  which  this  political  fabric  was  to  be  extended  and  supported ; 
and  were  fully  persuaded  that  when  they  were  removed,  or  should 
moulder  down  by  time,,  the  general  government  must  tumble  into 
ruin."  [Ibid.  58.]  Further  along  in  the  debate,  in  reference  to  the 
proper  lodgment  of  the  treaty-making  power,  he  said  :  "  As  the  senate 
represents  the  sovereignty  of  the  states,  whatever  might  affect  the 
states  in  their  political  capacity,  ought  to  be  left  to  them.  This  is 
the  certain  means  of  preventing  a  consolidation."  [Ibid.  123.]  In 
this  connection  he  mentions  the  most  important  and  instructive  fact, 
"  that  the  extreme  jealousy  of  the  little  states,  and  between  the  com- 
mercial states  and  the  non-importing  states,  produced  [in  the  federal 
convention]  the  necessity  of  giving  an  equality  of  suffrage  to  the  sen- 
ate. The  same  causes  made  it  indispensable  to  give  to  the  senators, 
as  representatives  of  states,  the  power  of  making,  or,  rather,  ratifying, 
treaties ;  .  .  .  the  small  states  would  not  consent  to  confederate  with- 
out an  equal  voice  in  the  formation  of  treaties.  .  .  .  Every  man  was 
convinced  of  the  inflexibility  of  the  little  states  on  this  point.  Tt, 
therefore,  became  necessary  to  give  them  an  absolute  equality  in  mak- 
ing treaties."  [Ibid.  120.]  This  is  like  the  statement  that  Charles 
Pinckney  made  in  the  convention  of  South  Carolina.  He  said  the 
smaller  states,  in  the  federal  convention,  declared  that  "  they  formerly 
confederated"  as  equal  " political  associations,"  and  that  "no  induce- 
ment whatsoever  should  tempt  them  to  unite  upon  other  terms." 

9 


130  FEDERALIZATION. 

[Ibid.  256.]  Mr.  Davie  further  said  that  North  Carolina's  insisting 
upon  amendments  before  ratification,  was  an  "  attempt  to  dictate  to 
one  of  the  most  powerful  confederacies  in  the  world  "  while  "  we  "  are 
"  no  part  of  that  confederacy."  "  Four  of  the  most  respectable  states," 
continued  he,  "have  adopted  that  constitution,  and  recommended 
amendments.  New  York  [if  she  refuses  to  adopt],  Rhode  Island  and 
North  Carolina  will  be  the  only  states  out  of  the  union.  But  if  these 
three  were  added,  they  would  compose  a  majority  in  favor  of  amend- 
ments. .  .  .  Two-thirds  of  the  legislatures  of  the  states  in  the  confed- 
eracy, may  require  congress  to  call  a  convention  to  propose  amend- 
ments. .  .  .  Without  adoption,  we  are  not  a  member  of  the  confederacy, 
and,  possessing  no  federal  rights,  can  neither  make  any  proposition, 
nor  require  congress  to  call  a  convention."  [Ibid.  236.] 

ARCHIBALD  MACLAINE,  one  of  the  ablest  advocates  of  the  federal 
system,  said,  in  the  same  convention,  in  reference  to  the  general  and 
local  governments  being  alike  subordinate  to  the  same  people,  that 
"the  members  of  the  general  government,  and  those  of  the  state  legis- 
lature, are  both  chosen  by  the  people  —  both  from  among  the  people, 
and  are  in  the  same  situation."  [Ibid.  68.]  In  reference  to  the 
phrase,  "  we,  the  people,"  he  said  :  "  The  constitution  is  only  a  mere 
proposal.  .  .  .  We  might  adopt  it,  if  we  thought  it  a  proper  system, 
and  then  it  would  become  our  act.  ...  It  is  no  more  than  a  blank, 
till  it  be  adopted  by  the  people.  When  that  is  done  here,  is  it  not  the 
people  of  the  state  of  North  Carolina  that  do  it,  joined  with  the  people 
of  the  other  states,  who  have  adopted  if?  The  expression,  then,  is 
right."  [Ibid.  25.] 

SAMUEL  JOHNSTON,  who  was  at  the  same  time  governor  of  the  state, 
and  the  president  of  the  convention,  said,  on  the  same  occasion  :  "  We 
are  not  to  form  a  constitution,  but  to  say  whether  ive  shall  adopt  a 
constitution  to  which  ten  states  have  already  acceded.  If  we  think  it 
bad,  we  can  reject  it.  If  proper  for  our  adoption,  we  may  adopt  it." 
[Ibid.  15.]  Speaking  of  the  several  sacred  rights  of  the  people  and 
states,  which  some  feared  the  new  plan  endangered,  he  said  :  "  If  I 
thought  any  thing  in  this  constitution  tended  to  abridge  these  rights, 
I  would  not  agree  to  it."  As  to  amendments  to  secure  the  integrity 
of  the  states,  and  the  subordination  of  the  government  to  them,  he 
said  :  "  It  will  be  adopted  by  a  very  great  majority  of  the  states.  For 
states  who  have  been  as  jealous  of  their  liberties  as  any  in  the  world, 
have  adopted  it;  and  they  were  some  of  the  most  powerful  states. 
We  shall  have  the  assent  of  all  the  states  in  getting  amendments. 
[Ibid.  57.] 

RICHARD  D.  SPAIGHT,  a  member  of  both  the  federal  and  state  con- 
ventions, said  in  the  latter :  "  The  gentleman  says  we  exceeded  our 


NORTH  CAROLINA  FEDERALIZES   HERSELF.  131 

powers.  I  deny  the  charge.  We  were  sent  with  a  full  power  to 
amend  the  existing  system.  This  involved  every  power  to  make  every 
alteration  necessary  to  meliorate  and  render  it  perfect.  .  .  .  What  the 
convention  has  done  is  a  mere  proposal.  It  was  found  impossible  to 
improve  the  old  system  without  changing  its  very  form  ;  for  by  that 
system  the  three  great  branches  of  government  are  blended  together. 
.  .  .  The  proposing  a  new  system,  to  be  established  by  the  assent  and 
ratification  of  nine  states,  arose  from  the  necessity  of  the  case."  This 
new  system  he  shows  to  be  a  federal  government,  with  the  legislative, 
executive,  and  judicial  functions  divided  and  independent.  But  was 
there,  as  Webster  has  since  asserted,  a  change  from  a  confederation  to 
"  another  system  1 "  Let  Mr.  Spaight  answer  :  "  If  we  do  not  adopt 
first,  we  are  no  more  a  part  of  the  union  than  any  foreign  power.  .  .  . 
If  we  adopt  first,  our  representatives  will  have  a  proportionable  weight 
in  bringing  about  amendments.  .  .  .  It  is  adopted  by  ten  states  already. 
The  question,  then,  is  not  whether  the  constitution  be  good,  but 
whether  we  will,  or  will  not,  confederate  with  the  other  states." 
[Ibid.  206-8.] 

The  Sovereign  rejects  the  League.  —  But  I  have  quoted  enough. 
The  friends  and  foes  of  the  new  plan  were,  in  this  convention,  as  they 
were  in  every  other,  opposed  to  consolidation,  and  in  favor  of  preserv- 
ing the  integrity  of  the  state,  and  her  sovereign  will  over  her  interests 
and  destiny.  That  this  statehood  was  endangered  by  the  unamended 
constitution,  was  the  opinion  of  North  Carolina,  for  she  refused  to 
adopt,  by  a  majority  of  188  to  88,  but  simultaneously  made  the  fol- 
lowing record:  "In  convention,  August  1,  1788:  Resolved,  that  a 
declaration  of  rights,  .  .  .  together  with  amendments,  .  .  .  ought  to 
be  laid  before  congress,  and  the  convention  of  states,  that  shall  or  may 
be  called,  previous  to  the  ratification  of  the  constitution  aforesaid,  on 
the  part  of  the  state  of  North  Carolina."  [Ibid.  242.]  And  she  pro- 
ceeded then  and  there  to  make  such  declaration  [Ibid.  243],  and  to 
join  Massachusetts  in  demanding  further  safeguards  for  state  integrity. 
Her  version  of  the  then  prospective  Tenth  Amendment  is  as  follows  : 
"  That  each  state  in  the  union  shall  respectively  retain  every  power, 
jurisdiction,  and  right,  which  is  not  by  this  constitution  delegated  to 
the  congress  of  the  united  states  or  to  the  departments  of  the  federal 
government."  [Ibid.  244.] 

The  Sovereign  ratifies  the  League.  —  Having,  like  a  sovereign, 
rejected,  she  subsequently,  in  her  own  time  and  manner,  and  on  her 
own  terms,  like  a  sovereign,  ratified  the  constitution  —  no  power  or 
influence  exhibiting  itself,  in  any  quarter,  to  operate  upon  her  will. 
On  the  1 3th  of  September,  1 788,  as  we  have  seen,  the  congress  of  the 
states  resolved  to  put  the  new  government  in  operation,  which  was 


132  FEDER  ALIZATION. 

duly  done;  whereafter,  to  wit,  on  November  21,  1789  (the  general 
government  having  been  organized ;  Washington  elected  president  by 
all  the  states  that  had  joined  the  union  —  except  New  York,  she  not 
participating;  and  the  desired  amendments  assured),  North  Carolina, 
by  a  vote  of  193  to  75,  ratified  the  constitution  as  follows  :  Resolved, 
that  this  convention,  in  behalf  of  the  freemen,  citizens  and  inhab- 
itants of  the  state  of  North  Carolina,  do  adopt,  and  ratify  the 
said  constitution  and  form  of  government.  Done  in  convention 
this  21st  day  of  November,  1789."  [I.  Ell.  Deb.  244.] 

Was  this  not  acting  like  a  "  sovereign,  free  and  independent  state," 
as  all  the  states  solemnly  agreed  and  guarantied  she  was  ] 

Why  did  not  Mr.  Webster's  great  "  We-the-people  "  nation  —  the 
great  sovereign  commonwealth,  that  "once  upon  a  time"  —  in  his 
imagination  —  so  sovereignly  distributed  its  powers  between  its  "  gen- 
eral "  and  its  "  local "  governments,  give  North  Carolina  her  share, 
and  compel  her  to  take  it  1  Was  it  just  and  merciful  to  her  people, 
to  allow  her  to  remain  —  as  long  as  she  chose  to  be  contumacious  — 
utterly  destitute  of  power  for  their  protection  and  welfare  ?  —  for,  be  it 
known  and  understood,  that  "  our  states  had  their  status  in  the  union, 
and  no  other  legal  status !  "  and  "  neither  more  nor  less  power  than 
that  reserved  to  them  by  the  constitution  !  "  So  said  Mr.  Lincoln  — 
rather  emphasizing,  though  not  misstating,  the  views  of  the  great 
Massachusetts  expounders,  Dane,  Story,  and  Webster. 

Washington  versus  Webster.  —  Webster's  chief  dogma  is,  as  we 
have  seen,  that  the  constitution  is  the  union  or  association  of  an  un- 
divided nation,  and  that  in  it,  this  people  distribute  their  powers  be- 
tween their  general  and  state  governments.  The  following  shows 
Washington's  idea :  — 

On  May  10,  1789,  the  governor  and  council  of  North  Carolina  ad- 
dressed congratulations  to  him  on  his  election  to  the  presidency,  say- 
ing, among  other  things  :  "  Though  this  state  be  not  yet  a  member  of 
the  union,  under  the  new  form  of  government,  we  look  forward  with 
pleasing  hope  to  soon  becoming  such,  and  in  the  meantime  consider 
ourselves  bound  in  a  common  interest  and  affection  with  the  other 
states,  waiting  only  for  such  alterations  as  will  remove  the  apprehen- 
sions of  the  good  citizens  of  this  state,  for  those  liberties  for  which 
they  have  fought  and  suffered,  in  common  with  others."  Signed  by 
Samuel  Johnston,  governor,  and  James  Iredell,  president  of  the 
council. 

Gen.  Washington  replied  June  19,  1789.  He  considers  "the  letter 
...  but  as  indicative  of  the  good  dispositions  of  the  citizens  of  your 
state  towards  their  sister  states,  and  of  the  probability  of  their  speedily 
acceding  to  the  new  general  government."  He  joins  them  in  the 


NORTH  CAROLINA  FEDERALIZES  HERSELF.  133 

hope  that  the  "  union  will  be  as  perfect,  and  more  safe  than  it  has 
ever  been,"  and  concludes  by  imploring  "  Divine  guidance  in  the 
councils  which  are  shortly  to  be  taken  by  their  delegates,  on  a  subject 
of  the  most  momentous  consequence.  I  mean  the  political  relation 
which  is  to  subsist  hereafter  between  the  state  of  North  Carolina  and 
the  states  now  in  union,  under  the  new  general  government."  For 
this  correspondence,  see  the  American  Museum  for  July,  1789. 

President  Washington,  Gov.  Johnston,  and  Judge  Iredell  did  not 
know  of  any  "association  of  the  people"  of  all  the  states  "  uniting 
their  power,"  "joining  their  highest  interests,  "  "blending  in  one  in- 
divisible mass  all  their  hopes  for  the  future,"  and  exhibiting  a  "  na- 
tional will "  "  effectually  controlling,"  "state  sovereignty."  [Webster's 
speeches  of  1830  and  1833.]  The  eminent  teachers  of  Massachusetts 
did  not  "  keep  a  school  "  m  those  days,  to  teach  that  the  union  was  not 
an  association  of  states,  —  i.  e.  "  the  united  states  ;  "  and  these  unso- 
phisticated fathers  thought  the  people  -had  no  social  or  political  or- 
ganization, and  no  capacity  to  act  politically,  except  as  states. 

They  took  for  granted,  and  acted  upon,  the  principle  Massachusetts 
had  promulgated,  —  a  principle  applicable  alike  to  all  the  equal  states 
of  America,  viz.,  "  That  the  people  of  this  commonwealth  have  the 
sole  and  exclusive  right  of  governing  themselves  as  a  free,  sovereign 
and  independent  state  /  " 


CHAPTEE  XII. 
RHODE  ISLAND  FEDERALIZES  HERSELF. 

THE  THIRTEENTH  TO   RATIFY  — REJECTION,  MARCH,  1788  -  ADOPTION, 
MAY   29,   1790  — VOTE,   34  TO   32. 

THIS  little  state  rejected  the  constitution,  by  a  direct  vote  of  her 
people,  in  March,  1788.  The  vote  was  2,708  to  232,  many  citi- 
zens declining  to  vote.  Two  years  afterwards,  when  the  amendments, 
deemed  necessary  to  secure  state  sovereignty  were  assured,  she  called 
a  convention,  which,  after  duly  deliberating,  ratified  the  constitution 
by  a  vote  of  34  to  32,  —  the  following  extract  being  the  material  part 
of  her  ordinance  :  "  We,  the  delegates  of  the  people  of  the  state 
of  Rhode  Island  and  Providence  Plantations,  duly  elected  and  met 
in  convention,  having  maturely  considered  the  constitution  for  the 
united  states  of  America,  ...  (a  copy  whereof  precedes  these  pres- 
ents), and  having  also  seriously  and  deliberately  considered  the  pres- 
ent situation  of  this  state,  ...  in  the  name  and  behalf  of  the 
people  of  the  state  of  Rhode  Island  and  Providence  Plantations, 
do,  by  these  presents,  assent  to  and  ratify  the  said  constitution. 
.  .  .  Done  in  convention  at  Newport,  ...  the  29th  day  of  May, 
A.  D.  1790.'" 

Rhode  Island,  then,  with  the  absolute  right  to  adopt  or  reject,  rati- 
fied, and  made  the  thirteenth  of  the  sovereigns  that  constituted  the 
federation,  and  the  federal  government. 

Washington's  View  of  the  Act.  —  In  June,  1790,  to  the  legislature 
of  Rhode  Island,  Washington  wrote,  acknowledging  their  congratula- 
tions on  his  "  election  to  the  chief  magistracy  of  our  confederate  re- 
public," and  expressing  his  "  pleasure  at  the  completion  of  our  union  by 
the  accession  of  your  state."  [X.  R.  I.  Colonial  Records,  410.]  To  Gov. 
Tenner,  of  Rhode  Island,  he  wrote,  June  17,  1790,  congratulating  him 
on  the  ratification  of  that  state,  and  on  the  attainment  of  the  union  of 
"  all  those  states  which  were  originally  confederated."  "  Our  bond  of 
union,"  continued  he,  "is  now  complete,  and  we  are  once  more  as 
one  family."  He  meant  family  of  states,  and  not  of  persons. 

Finis  coronat  Opus.  —  Rhode  Island  then  crowned  the  work  of 
union,   as  she  now  crowns  the  argument  of  federalizatiou.      Even 


RHODE  ISLAND  FEDERALIZES  HERSELF.  135 

Mr.  George  T.  Curtis,  at  present  the  leading  expounder  of  the  Massa- 
chusetts school,  admits  that  Rhode  Island  was  then  in  a  condition  of 
"  absolute  sovereignty."  [II.  Hist.  Const.  599.]  Just  as  she  existed, 
she  took  her  place  in  the  federal  system,  without  any  change  being 
provided  for,  or  hinted  at.  Indeed,  she  was  named  as  a  pre-ex- 
istent  and  unchanged  political  entity.  That  name  —  Rhode  Island  — 
could  have  had  but  one  meaning,  as  to  people,  organism,  or  political 
right. 

Nay,  more,  she  crowned  the  testimony  of  the  states  on  the  ques- 
tion of  their  intended  absolute  sovereignty  in  the  union,  in  a  way  not 
generally  noted  and  appreciated  as  it  should  be.  Massachusetts,  in 
her  convention,  had  insisted  that  after  the  states  should  adopt,  and 
carry  into  effect,  the  new  constitution,  they  should  amend  it,  declaring 
that  "All  powers  not  expressly  delegated  by  the  constitution,  are 
reserved  to  the  several  states."  [II.  Ell.  Deb.  177.]  Samuel  Adams, 
in  said  convention,  had  stated  nem.  dis.,  that  this  was  a  "  summary 
of  a  bill  of  rights,"  and  that  it  meant  that  "  each  state  retains  its 
sovereignty"  etc.,  "and  every  power,"  etc.,  "not  expressly  delegated  to 
the  united  states."  He  wrote  to  E.  Gerry  and  R.  H.  Lee,  in  congress 
in  1789,  that  the  amendment  was  desired,  so  that  the  people  might 
always  "  see  a  line  drawn,  as  clearly  as  may  be,  between  the  federal 
powers  vested  in  congress,  and  the  distinct  sovereignty  of  the  several 
states."  [III.  Life  of  Samuel  Adams.] 

Moreover,  South  Carolina,  New  Hampshire,  Virginia,  New  York, 
and  North  Carolina  had  joined  Massachusetts  in  demanding  the 
amendment;  and  it  had  become  universally  understood  that  such 
amendment  would  be  made?  to  make  assurance  doubly  sure  against 
consolidation  of  the  states,  which  Ames,  Parsons,  Madison,  Hamilton, 
Marshall,  Pendleton,  and  others  had  assured  the  people  was  impos- 
sible under  the  constitution,  as  it  stood  without  amendment.  Again, 
North  Carolina  had  rejected,  because  of  the  want  of  such  provision, 
but  had  subsequently  ratified,  because  she  felt  confident  it  would  be 
made. 

It  was  then  that  Rhode  Island  crowned  the  evidence  against  the 
intent  of  consolidation,  as  follows :  "  And  the  convention  do,  in  the 
name  and  behalf  of  the  people  of  the  state,  .  .  .  enjoin  it  upon  their 
senators  and  representatives  .  .  .  elected  to  represent  this  state  in  con- 
gress, to  ...  use  all  reasonable  means  to  obtain  a  ratification  of  the 
following  amendments  .  .  .  : 

"  1.  The  united  states  shall  guaranty  to  each  state  its  sovereignty, 
freedom  and  independence,  and  every  power,  jurisdiction  and  right, 
which  is  not  by  this  constitution  expressly  delegated  to  the  united 
states  ..."  [I.  Ell.  Deb.  336.] 


136  FEDERALIZATION. 

Thus  we  see  the  status  that  Rhode  Island,  in  common  with  her 
sisters,  intended  and  expected  to  have  in  the  union.  And  history 
shows  that  the  commonwealths,  and  leading  public  men,  all  held  the 
idea  that  sovereign  republics  were  constituting  a  federal  government, 
or,  in  other  words,  an  agency,  through  which  to  exercise  their  powers 
for  their  common  defence  and  general  welfare.  [See  again,  Part  I., 
Ch.  VII.] 

The  Republic  of  Republics.  —  We  have  now  patiently  gone 
through  the  historical  records  of  all  the  original  states,  and  ascer- 
tained from  the  testimony  of  their  leading  men,  who  were  the  advo- 
cates of  the  new  system,  and  from  the  acts  of  the  states  themselves, 
that  the  constitution  was  formed  and  vitalized  by  thirteen  independent 
and  concurrent  wills,  each  witli  no  superior  on  earth  ;  that  each  and 
every  convention  was  authorized  and  elected  solely  by  the  state  it 
acted  for,  to  deliberate  on  the  proposed  system,  and  express  that 
state's  will  in  ratifying  or  rejecting  it ;  and  that,  therefore,  no  great 
nationality  or  national  will  ever  did,  or  could  possibly,  exert  itself  in 
the  premises ;  but  that  the  thirteen  states  did  associate  themselves  by 
federal  compact,  "to  establish  justice,  insure  domestic  tranquillity,  pro- 
vide for  the  common  defence,  promote  the  general  welfare,  and  secure 
the  blessings  of  liberty ; "  and  did  thereby  "  form  a  more  perfect 
union"  of  states,  as  well  "as  a  more  efficient  federal  government." 

The  association  formed  was  necessarily  a  confederacy,  for  its  con- 
stituents were  states,  which  remained  intact  after  its  establishment. 
[Art  I.,  §  2,  c.  3.]  It  was  properly  called  the  "federal  system," 
or  "confederated  republic,"  by  Washington  and  his  compeers;  and 
it  completely  answered  to  the  "republic  of  republics"  of  Montes- 
quieu. 


CHAPTEK  XIII. 

THE  "EXECUTED"  "DEED." 

HAVING  shown  from  the  sacred  records  of  the  country,  who  the 
parties  to  the  "  deed  "  were,  and  their  successive  executions  of 
the  same,  I  now  present  to  the  eye,  the  instrument  and  its  real  mak- 
ers together,  as  an  ocular  or  pictorial  view  will  enable  the  simplest 
person  to  see  and  expose  the  leading  and  misleading  perversions  of 
those  sophists,  who  infest  every  section  and  neighborhood,  and  busy 
themselves  in  undermining  those  temples  of  liberty,  the  common- 
wealths. 

A  Fatal  Admission  of  Mr.  Webster.  —  Though  Mr.  Webster  said 
the  federal  constitution  was  made  by  a  nation,  and  not  by  states  ;  and 
that  it  contained  no  element  of  a  compact,  he  could  not  fail,  owing  to 
the  nature  of  the  case,  to  contradict  himself,  and  make  fatal  admis- 
sions, as  will  be  more  plainly  seen  hereafter.  The  following  example 
is  from  his  speech  in  reply  to  Calhoun,  in  1833  :  "  The  constitution," 
said  he,  "  began  to  speak  only  after  its  adoption.  Until  it  was  rati- 
fied by  nine  states,  it  was  but  a  proposal  —  the  mere  draft  of  an  in- 
strument —  a  deed  drawn  but  not  executed." 

The  admission  that  "  it  was  ratified  by  nine  states,"  and  "  began  to 
speak  only  after  its  adoption  "  by  these  states,  is  a  giving  up  of  the 
whole  case,  for  the  product  of  such  ratifications  could  only  be  a  pact, 
treaty  or  league  —  and  all  the  ink  of  the  Massachusetts  school  cannot 
prevent  the  fatality  of  the  admission  ! 

Now  let  us  see  the  "  Deed  "  as  "  Executed."  —  That  is  to  say, 
the  constitution  of  general  government,  as  "  done  "  by  the  thirteen 
states,  together  with  their  names  as  constituents,  and  their  ordain- 
ing words,  —  the  only  words  ever  used  to  give  it  life  and  legal  force, 
—  the  only  words  that  could  possibly  ordain  and  establish  it ;  the 
words  that  were,  so  to  speak,  the  enacting  clause  of  the  said  supreme 
law.  The  reader  will  please  refer  constantly  and  thoughtfully  to  the 
constitution  and  its  parties ;  and  the  ordaining  words  of  these,  as 
presented  on  the  ensuing  pages.  Abridgment,  and  typographical 
devices  are  resorted  to,  for  obvious  purposes. 


138  FEDERALIZATION. 


CONSTITUTION  OF  THE  UNITED  STATES  OF  AMERICA. 

"WE  THE  PEOPLE  of  the  united  STATES,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity,  provide  for  the 
common  defence,  promote  the  general  welfare,  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity,  do  ordain  and  establish  this  constitu- 
tion for  the  united  STATES  of  America. 

ARTICLE  I.,  SECTION  1.  ALL  LEGISLATIVE  POWERS  herein 
granted,  shall  be  VESTED  in  a  Congress  of  the  united  STATES,  which 
shall  consist  of  a  senate  and  house  of  representatives. 

SECTION  2.  The  house  of  representatives  shall  be  composed  of  members 
chosen  every  second  year  by  the  people  of  the  several  states,  and  the 
electors  in  each  state  shall  have  the  qualifications  requisite  for  electors  of 
the  most  numerous  branch  of  the  state  legislature. 

*  *  *  Representatives  and  direct  taxes  shall  be  apportioned  among  the 
several  states  which  may  be  included  within  this  union,  according  to  their 
respective  numbers.  *  *  * 

The  number  of  representatives  shall  not  exceed  one  for  every  thirty- 
thousand,  but  each  state  shall  have  at  least  one  representative  ;  and  until 
such  enumeration  shall  be  made,  the  state  of  NEW  HAMPSHIRE 
shall  be  entitled  to  choose  three  ;  MASSACHUSETTS,  eight;  RHODE 
ISLAND  and  Providence  Plantations,  one ;  CONNECTICUT,  five ; 
NEW  YORK,  six  ;  NEW  JERSEY,  four ;  PENNSYLVANIA,  eight ; 
DELAWARE,  one;  MARYLAND,  six;  VIRGINIA,  ten;  NORTH 
CAROLINA,  five;  SOUTH  CAROLINA,  five;  and  GEORGIA, 
three. 

When  vacancies  happen  in  the  representation  from  any  state,  the 
executive  authority  thereof,  shall  issue  writs  of  election  to  fill  such  va- 
cancies. *  *  * 

SECTION  3.  The  senate  of  the  united  states  shall  be  composed  of  two 
senators  from  each  state,  *  *  *  and  each  senator  shall  have  one  vote.  *  *  * 

SECTIONS.  The  congress  shall  have  power — [here  follows  an  enumera- 
tion of  the  powers  of  congress,  and  prohibitions  on  congress  and  the  states]. 

ARTICLE  II.,  SECTION  1.  THE  EXECUTIVE  POWER  shall  be 
VESTED  in  a  president  of  the  united  STATES  of  America.  *  *  * 

Each  state  shall  appoint,  in  such  manner  as  the  legislature  thereof  may 
direct,  a  number  of  electors  equal  to  the  whole  number  of  senators  and  rep- 
resentatives to  which  the  state  may  be  entitled  in  congress.  *  *  * 

ARTICLE  III.,  SECTION  1.  THE  JUDICIAL  POWER  of  the  united 
STATES  shall  be  VESTED  in  one  supreme  court,  and  in  such  inferior 
courts  as  the  congress  may  from  time  to  time  ordain  and  establish.  *  *  * 

ARTICLE  IV.,  SECTION  1.  Full  faith  and  credit  shall  be  given  in  each 
state  to  the  public  acts,  records,  and  judicial  proceedings  of  every  other 
state. 

SECTION  2.  The  citizens  of  each  state  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  states.  *  *  * 

SECTION  3.  New  states  may  be  admitted  by  the  congress  into  this 
union  ;  but  no  new  state  shall  be  formed  or  erected  within  the  jurisdiction 
of  any  other  state;  nor  any  state  be  formed  by  the  junction  of  two  or 
more  states,  or  parts  of  states,  without  the  consent  of  the  legislatures  of 
the  states  concerned,  as  well  as  of  congress.  *  *  * 

SECTION  4.  The  united  states  shall  guaranty  to  every  state  in  this 
union  a  republican  form  of  government,  and  shall  protect  each  of  them 


THE  "EXECUTED"  "DEED.' 


139 


against  invasion ;  and  on  application  of  the  legislature,  or  of  the  executive 
(when  the  legislature  cannot  be  convened),  against  domestic  violence. 

ARTICLE  V.  The  congress,  whenever  two-thirds  of  both  houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  constitution ;  or  on  the 
application  of  the  legislatures  of  two-thirds  of  the  several  states  shall  call  a 
convention  for  proposing  amendments,  which,  in  either  case,  shall  be  valid 
to  all  intents  and  purposes  as  part  of  this  constitution,  when  ratified  by  the 
legislatures  of  three-fourths  of  the  several  states,  or  by  conventions  in 
three-fourths  thereof,  as  the  one  or  the  other  mode  of  ratification  may  be 
proposed  by  congress ;  provided  that  *  *  *  no  state,  without  its  consent, 
shall  be  deprived  of  its  equal  suffrage  in  the  senate. 

ARTICLE  VI.  All  debts  and  engagements  entered  into,  before  the 
adoption  of  this  constitution,  shall  be  as  valid  against  the  united  states 
under  this  constitution,  as  under  the  confederation. 

This  constitution  and  the  laws  of  the  united  states,  which  shall  be  made 
in  pursuance  thereof;  and  all  treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  united  states,  shall  be  the  supreme  law  of  the  land  ; 
and  the  judges  of  every  state  shall  be  bound  thereby,  and  anything  in  the 
constitution  or  the  laws  of  any  state  to  the  contrary  notwithstanding. 

The  senators  and  representatives  before  mentioned,  and  the  members  of 
the  several  state  legislatures,  and  all  executive  and  judicial  officers,  both 
of  the  united  states  and  of  the  several  states,  shall  be  bound  by  oath  or 
affirmation  to  support  this  constitution ;  but  no  religious  test  shall  be  re- 
garded as  a  qualification  to  any  office  or  public  trust  under  the  united 
states. 

ARTICLE  VII.  The  ratification  of  the  conventions  of  nine  states  shall 
be  sufficient  for  the  establishment  of  this  constitution  between  the  states  so 
ratifying  the  same. 


I.  DELAWARE.    "  We,  the  deputies  of  THE 
PEOPLE  of  the  DELAWARE  STATE,  *  *  by  these 

R resents  do,  in  virtue  of  the  power  and  author- 
;y  to  us  given  for  that  purpose,  for  and  in 
behalf  of  ourselves  and  constituents  *  *  approve 
of,  assent  to,  RATIFY,  and  confirm,  the  said  con- 
stitution. Done  in  CONVENTION  *  *  Dec.  7, 
17-<7,"  by  unanimous  vote. 

II.  PENNSYLVANIA.   "  We,  the  delegates 

Of  THE  PEOPLE  Of  the  COMMONWEALTH  of  PENN- 
SYLVANIA, *  *  do,  in  the  name  and  by  the  au- 
thority of  THE  SAME  PEOPLE,  absent  to  and 
RATIFY  the  foregoing  constitution  for  the  united 
STATES  of  America.  Done  in  CONVENTION,  12th 
Dec.,  1737."  Vote  46  to  23. 

III.  NEW  JERSEY.    "  We.  the  delegates  of 
the  STATE  of  NEW  JERSEY,  *  *  do  hereby,  for  and 
on  behalf  of  THE  PEOPLE  of  the  said  STATE  of 
N  KW  .1  ERSEY,  agree  to,  RATIFY,  and  confirm  the 
same,  and  every  part  thereof.    Done  in  CONVEN- 
TION, 18th  Dec.,  1787,"  by  unanimous  vote. 

IV.  GEORGIA.    "  We,  the  delegates  of  THE 
PEOPLE  of  the  STATE  of  GEORGIA,  *  *  by  these 
presents  do,  in  virtue  of  the  powers  and  author- 
ity to  us  given  by  THE  PEOPLE  of  the  said  STATE 
for   that    purpose,  *  *  assent    to,  RATIFY,  and 
adopt  the  said  constitution.    Done  in  CONVEN- 
TION *  *  2d  Jan.,  A.  D.  1783,"  by  unanimous  vote. 

V.  CONNECTICUT.    "  In  the  name  of  THE 
PEOPLE  of  the  STATE  of  CONNECTICUT  :  We,  the 
delegates  of  THE  PEOPLE  of  said  STATE,  *  *  by 
these  presents,  do  assent  to,  RATIFY,  and  adopt 
the  constitution.  *  *  Done  in  CONVENTION,  Jan. 
9,  1733."    Vote  123  to  40. 

VI.  MASSACHUSETTS.   "  The  CONVENTION 

*  *  do,  in  the  name  and  in  behalf  of  THE  PEOPLE 

Of    the     COMMONWEALTH     Of    MASSACHUSETTS, 

assent  to,  and  RATIFY  the  said  constitution. 
Done  Feb.  7, 1788."  Vote  187  to  168. 

VII.  MARYLAND.     "  In  CONVENTION  *  * 
we,  the  delegates  of  THE  PEOPLE  of  MARYLAND, 

*  *  do,  in  the  name  and  on  behalf  of  THE  PEOPLE 


of  this  STATE,  assent  to  and  RATIFY,  the  said 
constitution."  Done  April  28,  1788.  Vote  63 
to  11. 

VIII.  SOUTH  CAROLINA.   "  The  CONVEN- 
TION *  *  do,  in  the  name  and  behalf  of  the  peo-. 
pie  of  this  STATE,  hereby  assent  to,  and  RATIFY 
the  said  constitution.    Done  in  CONVENTION  23d 
of  May,  A.  D.  1788."    Vote  149  to  73. 

IX.  NEW  HAMPSHIRE.     "'Jhe   CONVEN- 
TION *  *  do,  in  the  name  and  behalf  of  THE  PEO- 
PLE of  the  STATE  of  NEW  HAMPSHIRE  assent  ro, 
and  RATIFY  the  said  constitution  for  the  united 
STATES.    Done  June  21,  1788."  Vote  57  to  46. 

X.  VIRGINIA.    "  We,  the  delegates  of  THE 
PEOPLE  of  VIRGINIA,  *  *  now  met  in  conven- 
tion, *  *  in  the  name  and  in  behalf  of  THE  PEO- 
PLE of  VIRGINIA,  do,  by  these  presents,  assent 
to,  ann  RATIFY  the  constitution  *  *  hereby  sn- 
nouncing  to  all  those  whom  it,  may  concern,  that 
the  said  constitution  is  binding  upon  THE  SAID 
PEOPLE,  according  to  an  authentic  copy  hereto 
annexed.  *  *  Done  in  CONVENTION,  this  26th  of 
June,  1788."  Vote  89  to  79. 

XI.  NEW  YORK.   "We,  the  delegates  of  T<*E 
PEOPLE  of  the  STATE  of  NEW  YORK,  *  *  in  the 
name  and  behalf  of  the  PEOPLE  of  the  STATE  of 
NEW  YORK,  do,  by  these  presents,  assent  to,  and 
RATIFY  the  said  constitution.  *  *  Done  in  CON- 
VENTION, the  26th  of  July,  1788."    Vote  30  to  27. 

XII.  NORTH  CAROLINA.    "  Resolved  that 
this  CONVENTION  in  behalf  of  THE  FREEMEN,  cit- 
izens and  inhabitants  of  the  STATE  of  NORTH 
CAROLINA,  do  adopt  and  RATIFY  the  said  consti- 
tution.    Done  in  CONVENTION  this  21st  Nov., 
1789."    Vote  193  to  75. 

XIII.  RHODE  ISLAND.   "  We,  the  delegates 

Of  THE  PEOPLE  Of  the  STATE  of  RHODE    ISLAND, 

*  *  in  the  name  and  in  the  behalf  of  THE  PEOPLE 
of  the  STATE  of  RHODE  ISLAND,  do.  by  these  pres- 
ents, assent  to.  and  RATIFY  the  said  constitution. 

*  *  Done  in  CONVENTION,  the  29th  of  May,  A.  D. 
1790."    Vote  34  to  32. 


140  FEDERALIZATION. 

This  Depicts  the  Complete  Federal  System.  —  I  have  now 
brought  the  instrument,  and  the  parties  that  ratified  and  established 
it,  within  a  glance,  carefully  quoting  the  material  parts,  and  leaving 
out  the  rest,  —  the  object  being  to  make  a  pictorial  impression  of  the 
completed  compact,  or  "  executed  deed  "  on  the  ordinary  as  well  as 
the  cultivated  mind.  Furthermore,  to  compel  attention  to  some 
things  that  would  otherwise  escape  notice,  I  have  put  in  use  some  of 
the  aids  of  typography.  It  is  obviously  not  the  mere  instrument, 
but  the  instrument,  the  parties,  and  the  government  established,  that 
make  up  the  federal  system.  We  have  now,  under  our  eye  :  1.  The 
"  deed  "  as  Mr.  Webster  chooses  to  style  it ;  2.  The  names  of  the  par- 
ties to  it;  3.  The  only  "ratifying,"  "ordaining,"  and  "establishing" 
words  ever  used,  to  give  force  to  the  "  instrument ; "  4.  The  date  of 
each  of  the  ratifications,  showing  the  severally  of  them ;  5.  The  cor- 
porate vote  of  each  party,  expressing  her  will  to  execute  the  "  deed." 
This  gives  us  the  tout  ensemble,  as  in  a  picture  —  the  vitalized 
"  instrument  "  -  the  "  deed  "  "  executed."  Now  we  know  and  real- 
ize beyond  a  doubt,  that  the  plan  was  framed  in  a  "  convention  of 
states,"  and  submitted  to  each  state,  to  be  ratified  or  rejected ;  that 
each  state,  of  its  own  motion,  and  in  its  own  time,  called  a  conven- 
tion to  act  upon  it ;  that  the  thirteen  states  successively  "  ratified  " 
the  instrument,  just  as  any  other  thirteen  parties  would  have  acceded 
to,  or  ratified,  any  other  instrument ;  that  these  are  the  only  parties 
the  history  and  records  of  the  country  give  any  account  of;  and, 
finally,  that  the  only  possible  legal  and  political  result  was  a  compact 
of  federation,  and  a  constitution  of  federal  government.  These  were 
the  ideas  of  the  fathers ;  and,  when  we  reach,  as  we  shall  presently, 
the  examination  of  the  "  deed  "  itself,  we  shall  find  full  corroboration  ; 
for  it  will  appear  that  the  states  were  contemplated,  and  provided 
for,  as  sovereign  parties  and  actors,  in  every  section  and  every  line 
of  it. 

The  Essentials  of  a  Federation.  —  We  see  here  all  the  "  exe- 
cuted "  "  deed,"  or  instrument,  as  a  whole ;  also  who  the  parties 
to  it  are,  and  how  they  vitalized  it.  Precisely  as  thirteen  states  of 
Europe  would  have  done,  our  thirteen  states  successively  ratified  the 
great  compact,  thus  exactly  filling  the  technical  measure  of  a  league 
or  federation,  and  rendering  impossible  anything  else.  That  those 
constituents  act  by  ambassadors,  while  ours  act  by  conventions,  is  of 
no  moment.  The  product  of  independent  but  concurring  wills  must 
be  a  compact.  As  Mr.  Webster  admits,  the  "  instrument "  became 
the  "  deed "  "  executed,"  when  ratified  by  the  several  wills  of  nine 
states.  "Till  then,"  said  he,  "it  was  inoperative  paper,"  having  "no 
authority"  and  speaking  "no  language."  [Speech  of  1833.]  A  mo- 


THE   "EXECUTED"   "DEED."  141 

merit's  reflection  will  show  that  anything,  in  the  premises,  but  a 
compact,  was  a  legal  impossibility,  while  anything  but  a  federation 
was  a  political  one ;  for  here  were  precisely  the  elements  of  each  — 
no  more,  no  less  :  1.  The  cause,  motive  or  consideration  ;  2.  The 
parties  capable  of  contracting;  and  3.  The  assent  or  ratification  of 
each  and  all. 

A  second  moment's  reflection  shows  that  instead  of  the  constitu- 
tion being  merely  a  law,  as  Daniel  Webster  is  said  to  have  argued,  it 
involves  :  1.  The  compact  between  the  states ;  2.  The  law  of  the  said 
states  on  the  subjects  of  their  government ;  and  3.  The  constitution 
of  the  agency  through  which  they,  the  said  republics,  intended  to 
govern. 

A  third  moment's  reflection  will  show  that  THE  TRUE  PRESENTATION 
OF  OUR  SYSTEM  is  the  above,  which  we  ought  to  frame  and  hang  on 
every  wall,  or  print  in  every  book  of  instruction ;  and  that  if  this  were 
done,  it  would  so  impress  the  people,  and  the  rising  generation  (pic- 
torially,  as  it  were),  that  all  the  hermeneutics  of  the  hermeneutical 
Massachusetts  school  could  not  interpret  or  expound  it  away.  All 
would  see  and  know  that  each  state  virtually  signed  and  sealed  the  con- 
stitution, through  her  organ,  the  convention,  which  expressed  her  will 
to  "  ratify  "  -  —  using,  in  every  ordinance,  this  very  word  —  the  word 
which  the  sovereigns  of  the  world  everywhere  habitually  use,  in  adopt- 
ing and  vitalizing  the  compacts,  treaties,  leagues,  alliances,  etc.,  which 
their  commissioners  or  ambassadors  prepare. 

A  fourth  moment's  reflection  will  show  how  absurd  is  the  idea  of 
growth  or  development  of  written  institutions.  "  The  logic  of  events  " 
cannot  reason  us  to  "another  system"  than  the  one  our  fathers 
founded.  Such  well-known  words  as  "  constitution,"  "  establish- 
ment, "etc.,  which  have  for  their  very  soul  the  sense  of  stare,  to  stand, 
show  that  the  harness  the  fathers  devised,  and  the  sovereigns  imposed 
on  their  rulers,  and  the  tests  of  right  and  justice  they  consecrated  in 
our  organic  laws,  were  intended  to  remain  fixed,  as  the  defences  of  our 
blessings  of  liberty.  It  is  only  the  said  sovereign  authority  that  can 
ever  ordain  any  change. 

I  shall  hereafter  treat  of  this  most  interesting  and  vital  subject  at 
some  length. 

There  is  no  other  History  of  Establishment.  —  If  States  were 
not  the  only  parties  ordaining  and  establishing,  why  can  we  not  find 
the  history  of  some  other  action  to  this  end  1  Why  should  the  last 
article  of  the  instrument  provide  "  for  the  establishment  of  this  consti- 
tution between  the  states  so  [i.  <?.  by  conventions]  ratifying  the  samel" 
Why  should  all  the  leading  fathers  say,  as  they  did  do,  at  the  time  of 
establishing  it,  this  system  is  a  federation  of  sovereign  states  ?  [See 
their  statements  in  Part  I.,  Ch.  VII.] 


142  FEDERALIZATION. 

The  plain  answer  is  that  the  states  were  associating  to  make  them- 
selves "the  united  states,"  or  the  "union  of  states,"  as  the  constitu- 
tion itself  repeatedly  characterizes  the  association  formed  ;  and  it  was 
politically  and  morally  impossible  that  a  general  government,  consti- 
tuted and  carried  into  effect  by  such  parties,  should  be  other  than  a 
federal  government,  or  that  their  union  should  be  other  than  a  federa- 
tion of  equal  sovereigns. 

Until  the  new  federal  constitution  was  completely  "  established," 
as  a  living  and  operating  form  of  government,  in  place  of  the  old ; 
that  is  to  say,  until  nine  states  had  ratified,  and  had  acted  severally 
in  electing  federal  functionaries,  and  these  had  convened  and  organ- 
ized themselves  as  the  new  federal  government ;  the  solemn  treaty- 
stipulation,  guaranty,  and  pledge  of  faith,  of  all  the  states  to  each, 
was  in  full  force,  in  the  following  words :  "  EACH  STATE  RETAINS  ITS 
SOVEREIGNTY."  [See  the  first  fed.  const'n.,  Art.  II.]  With  this 
supreme  and  majestic  status  and  character,  each  and  all  acted.  Must 
not  sovereignty  have  existed  in  each  state,  through  the  act  of  estab- 
lishing, and  hence  afterwards,  to  enforce,  and,  if  need  be,  to  amend  ] 
When  did  this  sovereignty,  and  the  voluntariness  of  the  association 
cease  1 l 

Gross  Pictorial  Deception.  —  In  all  the  publications  of  this  great 
instrument,  from  the  beginning  to  this  day,  the  following  words  are 
placed  at  the  close  :  "  Done  in  convention  by  the  unanimous  consent 
of  the  states  present,  this  17th  of  September,  1787."  Affixed  to  this 
are  the  names  of  the  mere  framers,  and  of  the  states  they  represent. 
A  pictorial  impression  is  thus  made  upon  the  popular  mind,  which  the 
"  Massachusetts  school  "  deepen,  by  speciously  and  sophistically  using 
the  preamble,  the  supreme-law  clause,  and  the  Tenth  Amendment. 
They  say  that  the  constitution  teaches  that  "we,  the  people  "  of  the 
nation,  "  do  ordain  and  establish  "  [preamble]  ;  that  what  the  nation 
ordains  is  "  the  supreme  law  of  the  land "  [Art.  VI.,  §  2] ;  and 
that  all  powers,  not  delegated  by  the  nation,  in  this  constitution,  are, 
by  the  said  nation,  "  reserved  to  the  states  respectively,  or  to  the 

i  While  showing  the  states  to  be  the  absolute,  the  exclusive,  and  the  only  possible 
parties  to  the  constitution,  it  is  well  to  note  the  theory  of  the  remarkable  work  called 
"The  Lost  Principle,"  by  Barbarossa,  published  at  Richmond,  in  1860.  It  sets  forth 
that  the  warm  controversy  on  representation,  between  the  large  and  the  small  states, 
and  between  the  North  and  the  South,  that  rose  in  the  convention  of  1787,  resulted  in 
establishing  an  equilibrium  between  the  sections  by  compact.  Such  compact  —  or  more 
properly  speaking,  adjustment  or  understanding  —  if  such  there  was,  does  not  come  under 
my  aim,  which  is  to  set  forth  an  actual  written  compact,  constituting  a  government  (and 
ipso  facto  a  union  of  states),  and  delegating  specific  powers.  The  terms  of  that  instru- 
ment, its  powers  and  parties,  are  most  palpable  ;  and  nothing  is  said  in  it  of  sections  or 
their  agreements.  However,  the  subject  will  be  more  extensively  noticed  in  Part  III., 
while  the  author's  theory  will  be  found  iu  the  Appendix,  set  forth  in  his  own  words. 


THE   "EXECUTED"   "DEED."  143 

people  "  [Amendment  X.].  This  is  the  pith  of  the  consolidation  doc- 
trine. And  it  is  well  to  add  here,  that  Judge  Story,  as  if  to  aid  in 
misleading,  asserts  the  aforesaid  authenticating  words  to  be  a  part  of 
the  constitution.  [See  his  Com.,  §  1856.]  This  will  be  properly 
noticed  hereafter.  [See  p.  172,  infra.'] 

The  result  of  the  above  teaching  is,  a  popular  belief  that  a  system 
was  devised,  and  put  in  force,  in  1787,  by  the  said  framers,  who  repre- 
sented and  acted  for  the  nation ;  while  the  states  were  present,  con- 
senting to  be  bound,  and  to  have  and  enjoy  only  such  rights  and  powers 
as  should  be  "  reserved  to "  them  and  the  people  ;  and  that  the 
subsequent  ratifications  by  the  states,  were  merely  the  taking  of  the 
affirming  vote  of  the  nation  by  sections,  or  "  groups  of  voters."  [See 
Jameson's  Constitutional  Convention,  59  et  seqJ\ 

Exposure  of  the  Fallacy.  —  These,  and  other  deceptions,  produce 
in  the  popular  mind  a  vague  and  false  idea  of  our  system,  and  divert 
attention  from  the  real  signers  of  the  "executed"  "  deed,"  the  real 
constituents  of  the  constitution  —  "  the  people  "  as  commonwealths. 
It  is  forgotten  that  these  "  moral  persons  "  —  the  bodies-politic,  named 
in  the  constitution  —  gave  to  that  instrument  all  its  life  and  validity, 
each,  in  its  own  time,  place  and  convention,  discussing  the  instrument, 
and  ratifying  it.  It  is  forgotten  that  they  delegated  in  it  all  the 
powers  it  contains  ;  and  ever  afterwards  administered  it,  through  their 
own  citizens  and  subjects,  whom  they  elected  or  appointed  for  the  pur- 
pose. It  is  forgotten,  too,  that  it  was  only  the  draught,  or  unexecuted 
deed,  that  was  "  done  in  convention,''  while  the  living  thing,  i.  e.  the 
constitution  of  union  and  government,  was  not  "  done  " —  in  the  sense 
of  being  executed,  i.  e.  ordained  as  law,  and  empowered  to  operate — 
till  the  commonwealths  respectively  acted  on  it,  and  gave  it  the  only 
existence  and  legal  force  ever  contemplated  —  each  acting  with  her  own 
absolute  and  exclusive  will,  and  they  taking  two  or  three  years  to  de- 
liberate and  determine  whether  to  adopt  or  reject  —  the  first  adopting 
in  December,  1787,  the  ninth  and  complemental  one  in  June,  1788, 
and  the  thirteenth  and  last  in  May,  1790.  These  states,  as  Hamil- 
ton declared,  nem.  dis.,  were  "  the  parties  to  the  compact  "  [Fed.  85], 
and  the  "  essential  component  parts  of  the  union  "  [II.  Ell.  Deb.  304]. 
And  the  said  states  were  necessarily  the  only  " parties,"  or  "parts," 
possible,  for  they  comprised  —  nay,  they  were  themselves  —  all  the  peo- 
ple of  the  country,  and  had  under  their  sovereignty  and  jurisdiction, 
all  the  territory. 

The  above  deceptive  presentation  of  the  "  executed "  "  deed,"  is 
like  exhibiting  a  contract  signed  by  the  lawyers  who  framed  it,  in- 
stead of  the  parties  to  be  bound.  Or,  it  is  like  a  conveyance, 
with  the  names  of  the  conveyancers,  instead  of  the  vendor  and  vendee, 
affixed. 


144  FEDERALIZATION. 

In  a  republic,  these  popular  impressions  are  very  important,  as 
"  the  people,"  who  of  right  govern  in  everything,  are,  unfortunately, 
gregarious,  and  addicted  to  following  leaders  and  teachers.  They  sel- 
dom look  beneath  the  surface,  and,  as  appearances  generally  influence 
them,  things  virtually  are,  or  rather  become,  what,  to  the  masses, 
they  seem  to  be.  For  example,  in  the  case  before  us,  under  a  consti- 
tution, which  most  clearly  provides  for  a  federation  of  states,  governing 
themselves  through  agencies,  we  have  an  empire  of  provinces,  held  to- 
gether and  ruled  by  a  central  sovereignty  ! 

The  "  More  Perfect  Union  "  of  1788.  —  We  have  now  a  complete 
and  accurate  conception  of  the  "  more  perfect  union  "  of  states  formed 
in  1788,  to  supersede  the  one  of  1778,  which  had  proved  unsatisfactory. 
Though  the  above-quoted  phrase  shows  that  the  constituents  were  the 
same  in  both  unions,  the  great  perverters  audaciously  say  that  the 
change  nationalized  the  states,  by  consolidating  them  into  one  state 
or  nation,  instead  of  federalizing  them.  Mr.  Webster  asserted  that  "  a 
change  was  made  from  a  confederacy  of  states  to  a  different  system." 
[Speech  of  1833.]  So  said  Judge  Story  [I.  Com.  §  357] ;  and  such 
was  the  statement  of  the  federal  supreme  court  in  "  Gibbons  vs. 
Ogden."  [9  Wheaton,  1.] 

All  history  shows  the  falsity  of  the  contention;  the  fathers  de- 
clare it,  as  Chapter  VII.,  Part  I.  shows ;  and  we  shall  see  in  the 
next  chapter  that  the  constitution  itself  shows  it  to  be  utterly  base- 
less. 

The  Identity  of  Character  of  the  Two  Unions,  and  the  true  con- 
ception of  our  present  system  can  be  at  once  ineffaceably  stamped  on 
the  popular  mind,  and  an  end  put  to  controversy,  as  follows  : 

1.  Let  the  commonwealths  be  represented  as  so  many  symbolical 
figures.     On  the  opposite  page  are  13  such,  with  their  names.     Each 
represents  a  republic  or  self-governing  people  —  "  free,  sovereign  and 
independent."     Added  to  each  is  a  figure  representing  its  tripartite 
government — the  legislature,  the  executive,  and  the  judiciary. 

2.  Let  a  single  figure  be  placed  below  to  represent  congress  or  the 
federal  legislature  —  i.  e.  the  first  federal  government. 

3.  Let  a  line  be  drawn  from  the  legislature  of  each  state  to  the 
congress,  to  indicate  the  imparting  of  existence  and  authority  to  the 
first  federal  constitution,  that  of  1778.     It  was  adopted  by  the  states 
through  their  legislatures. 

4.  Let  there  be  added  to  the  congress,  to  complete  the  tripartite 
form  of  government,  two  figures,  one  the  executive,  and  the  other  the 
judiciary  —  thus  representing  the  plan  devised  by  the  convention  ot 
1787. 

5.  Then,  a  line  drawn  from  each  body-politic  itself,  instead  of  its 


THE   "EXECUTED"   "DEED."  145 

legislature,  indicates  the  imparting  of  life  and  authority  to  the  second 
federal  constitution  —  that  of  1 788. 

Both  Systems  Federal  Unions.  —  This  symbolical  demonstration 
shows  precisely  our  present  system  not  only,  but  the  difference  in  form 
and  character  between  it  and  the  first.  Both  systems  were  associa- 
tions of  commonwealths.  Both  unions  were  voluntary,  and  no  invol- 
untariness  could  supervene,  for  each  state  was  a  republic  or  self-govern- 
ing people,  with  no  limit  of  right ;  and  each  will  that  acted,  survived, 
and  presumably  remained  free.  And  in  all  the  long  track  and  record 
of  progress,  there  is  no  shadow  of  evidence  that  the  said  bodies-politic 
were  consolidated,  or  their  wills  subordinated.  That  is  to  say,  they 
were  not  provincialized  again  ! 

They  are  now  the  same  political  entities  that  gained  independence 
and  statehood.  Each  has  now  the  same  individual  name,  geography, 
people,  organism,  mind  and  will,  and  the  original  and  underived  right 
and  power  that  appertained,  under  God,  respectively  to  the  organized 
societies  of  people  in  1776.  And  out  of  them  no  power  has  ever  gone 
except  delegations  to  their  own  members,  citizens,  and  subjects,  who, 
acting  exclusively  with  such  powers,  can  only  be  "  substitutes  and 
agents,"  as  all  the  fathers  called  them. 

The  Separate  Wills  of  States  made  both  Systems.  —  It  is  ob- 
vious, then,  that  the  system  founded  iu  1 788,  was  as  much  of  a  federa- 
tion as  the  first,  for  the  people  of  each  state  gave  their  consent  and 
ordaining  power  to  this  as  to  that,  in  their  character  as  a  common- 
wealth, or  sovereign  political  body ;  and  more  unmistakably  in  this 
case,  as  here  it  was  the  commonwealth  itself  that  acted,  while  there  it 
was  its  agent,  the  legislature  ;  here  the  sovereignty  directly  delegated 
power,  there  the  delegation  was  done  by  delegates.  Masters  and 
principals  made  up  their  minds  and  exerted  their  wills  in  the  latter  case, 
while  servants  and  agents  acted  with  their  discretion  in  the  former. 
States,  in  both  instances,  bound  themselves  in  faith  —  in  the  former 
case  affirming,  or  acquiescing  in,  the  acts  of  their  agents,  but,  in  the 
latter,  acting  themselves.  It  is  plain,  then,  that  the  union  of  1788 
was  a  voluntary  association  of  pre-existent  sovereigns  —  a  federation  of 
distinct  and  absolutely  independent  states.  Indeed,  these  wills  could 
not,  by  any  political  or  moral  possibility,  come  together,  in  peace  and 
without  force,  for  self-preservation  and  self-government,  without  a 
confederacy  being  the  result.  Voluntariness  was  essential,  and  force 
could  only  end  it ! 

The  Later  Federation  the  "  More  Perfect."  —  If,  therefore,  I  were 
to  instance  a  complete  federation,  I  would  name  the  one  of  1 788,  in- 
stead of  the  other ;  for,  as  to  this  one,  the  forms,  acts  and  solemnities 
were  of  a  higher  character ;  the  authority  from  the  associating  sove- 

10 


146  FEDERALIZATION. 

reignties  was  more  direct  and  pronounced ;  the  architects  were  abler, 
more  experienced,  and  better  instructed  in  public  law  and  political 
philosophy;  the  action  was  much  more  deliberate  and  careful;  and 
the  structure  was  nearer  perfection,  more  practical,  and  much  better 
adapted  to  securing  the  ends  in  view,  viz.,  "  the  common  defence," 
"  the  general  welfare,"  and  "  the  blessings  of  liberty "  of  the  self- 
joined  states.  [See  Fed.  Const,  preamble.] 

But  let  us  conclude  these  chapters  on  Federalization  with  one 
asking  the  constitution  itself  what  polity  it  provides  for,  keeping  in 
mind  not  only  the  naming  of  the  states  therein,  and  their  separate 
ratifications  to  establish  it,  but  the  all-important  facts  :  — 

1.  That  the  congress  of  the  states  declared,  on  the  13th  of  Septem- 
ber, 1 788,  that  "  the  constitution  .  .  .  has  been  ratified  in  the  manner 
therein  declared  to  be  sufficient  for  the  establishment  of  the  same ;  and 
such   ratifications,  duly  authenticated,  have  been  received   by  con- 
gress, and  are  filed  in  the  office  of  the  secretary ; " 

2.  That  the  said  instrument  was  then  complete  as  the  compact,  the 
law,  and  the  constitution  of  government  of  the  said  ratifying  and  estab- 
lishing states ;  and 

3.  That,  thereafter,  to  operate  the  machine  that  had  been  so  delib- 
erately planned,  completed,  and  pronounced  good,  "  the  states  began  to 
act  wider    the  new  compact"  —  to  use  Washington's  phrase  [p.  230 
infra}  —  by  electing  their  respective  quotas  of  the  set  of  operatives, 
so  to  speak,  who  were  to  work  it. 

The  ship  of  state,  which  was  built  and  made  ready  for  sea  in 
1787-88,  did  not  ship  her  crew  and  set  sail  on  her  first  voyage  till 
March,  1789! 


CHAPTEK  XIV. 

THE  TESTIMONY  OF  THE  CONSTITUTION. 

WE  shall  hereafter  gradually  see  what  I  now  assume,  that  in  the 
republican  form  of  government,  sovereignty,  according  to  its 
nature,  controls  every  person  and  thing  within  its  territory,  and  is 
itself  above  all  control ;  that  it  is  indivisible  and  inalienable ;  that  it 
does  in  nowise  consist  of  the  rights  and  powers  it  grants  and  dele- 
gates ;  that  while  it  is  the  right  to  govern,  it  is  not  the  government, 
—  this  being  the  exercise  of  sovereignty  through  agencies  and  instru- 
ments ;  that  sovereignty  is  predicable  only  of  will ;  that  political  will 
can  only  exist  and  be  exercised  in  and  by  an  organized  community  of 
people ;  that  hence  each  state  must  be  sovereign  for  itself,  i.  e.  have 
the  absolute  right  of  self-government  in  all  things ;  that  by  their 
wills  the  states  made  "the  constitution  of  the  united  [or  associated] 
states ; "  that  in  so  doing  they  federated ;  that  entirely  intact  their 
said  wills  must  remain  to  govern  (each  itself  locally,  and  they  them- 
selves generally),  and  to  amend  their  constitution  if  they  wish ;  and, 
finally,  that,  in  all  respects,  the  union  is  an  association  of  sovereigns. 

I  shall  now  show  that  the  federal  instrument  fully  proves  this 
theory,  and  contains  nothing  against  it. 

"What  does  it  say  of  itself?"  —  In  his  speech  of  1833,  Mr. 
Webster,  while  conceding  that  the  constitution  was  no  more  than  "  a 
deed  drawn  but  not  executed  "  till  it  was  ratified  by  the  states,  said  : 
"  The  question  whether  the  constitution  is  a  compact  between  states, 
is  one  which  must  be  mainly  argued  from  the  instrument  itself."  He 
then  asks,  "  What  does  it  say  of  itself  ?  What  does  it  purport  to  be  1 
Does  it  style  itself  a  league,  confederacy,  or  compact  between  sove- 
reign states  I "  And  answers,  "  Certainly  not ;  but  it  declares  itself  a 
constitution."  This  advances  us  not  a  step,  but  leaves  the  question 
still  before  us  :  What  is  the  constitution  ?  Let  us  then  adopt  his 
suggestion,  and  ask  the  "  deed  "  what  it  has  to  say  of  itself,  taking 
care  to  keep  out  of  his  sophistical  clouds. 

The  Testimony  of  the  Title  and  Preamble.  —  The  title  is  "  The 
Constitution  of  the  United  States,"  and  the  preamble  says :  "  We, 


148  FEDERALIZATION. 

the  people  of  the  united  states,  ...  do  ordain  and  establish  this  con- 
stitution for  the  united  states  of  America."  Whose  constitution,  then, 
is  it  ?  The  title  answers,  "  the  constitution  of  the  *  states."  Who 
is  it  for]  The  preamble  answers,  "  this  constitution  for  the  *  states." 
The  states,  then,  are  the  important  subjects  of  these  sentences,  while 
the  word  "  united  " — meaning  associated — is  a  mere  adjective.  These 
phrases  obviously  refer  to  the  pre-existent  states,  united  by  the  pact. 
It  was  only  as  such  bodies  that  "  the  people  "  could  become  parties 
to  the  constitution,  for  each  individual  citizen  was  a  member  of  the 
state,  and  had  no  right  whatever  to  act  politically,  except  in  such 
body  and  as  such  member. 

Again,  "people  of"  and  "constitution  of,"  like  "government  of," 
"treasury  of,"  "  army  and  navy  of,"  and  the  like  phrases  throughout 
the  instrument,  are  possessive  phrases,  necessarily  implying  that  the 
political  entities  mentioned,  belonged  to  "  united  states,"  not  united 
people  ;  which  is  literally  the  fact,  and  which  was  the  understanding 
of  the  fathers.  We  are  then  compelled  to  say  that  the  owners  of 
these  things,  are  so  many  states ;  that  each  must  have  the  mind  and 
will  of  an  owner;  and  that  the  phrase  "  united  states  "  can  but  mean 
pre-existent  communities,  who  have  conjoined  themselves  in  league. 

And  the  repeated  use,  in  the  said  pact,  of  the  phrase  "  union  of 
states  "  conveys  the  same  idea  [Art.  I.,  §  2  ;  Art.  IV.,  §§  3,  4].  Nay, 
more,  the  states  referred  to  in  the  preamble,  must  be  those  which  the 
second  article  of  the  first  federal  pact  declared  to  be  sovereign,  and 
which  must  have  remained  so,  in  and  through  the  very  act  and  mo- 
ment of  forming  the  "more  perfect  union,"  described  and  "estab- 
lished "  in  the  second  and  present  federal  pact. 

We  find,  then,  that  the  title  and  preamble  of  the  constitution, 
illustrated  by  history,  conclusively  show  a  union  of  distinct  common- 
wealths, coequal,  and  of  course  each  for  itself  sovereign.  I  shall  now 
proceed  to  show  that  all  the  instrument  consists  with  these  views,  and 
proves  itself  to  be  a  foedus  of  absolute  sovereignties. 

The  "Deed"  names  and  recognizes  the  States.  —  Art.  L,  §  1, 
declares  that  "  representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  states  which  may  be  included  within  this  union,  ac- 
cording to  their  respective  numbers."  The  article  then  provides  for  a 
numbering  and  apportionment  within  three  years,  and  decennial  re- 
petitions of  the  same,  and  continues  as  follows  :  "  The  number  of  repre- 
sentatives shall  not  exceed  one  for  every  30,000,  but  each  state  shall 
have  at  least  one  representative  ;  and  until  such  enumeration  shall  be 
made,  the  state  of  New  Hampshire  shall  be  entitled  to  choose  3,  Massa- 
chusetts 8,  Rhode  Island  1,  Connecticut  5,  New  York  6,  New  Jersey  4, 
Pennsylvania  8,  Delaware  1,  Maryland  6,  Virginia  10,  North  Caro- 


THE   TESTIMONY  OF  THE  CONSTITUTION.  149 

lina  5,  South  Carolina  5,  and  Georgia  3.  When  vacancies  happen  in 
the  representation  from  any  state,  the  executive  authority  thereof  shall 
issue  writs  of  election  to  fill  such  vacancies." 

Here  are  named  the  political  bodies  which  are  alike  "  the  united 
states  "  and  "  the  people  of  the  united  states,"  for  "  the  people  "  are 
the  states,  and  the  states  are  "  the  people."  This  section  shows  pre- 
existent  historical  bodies,  with  their  respective  names,  geographies, 
organisms  and  independent  political  wills,  —  bodies  which  fully  and 
precisely  filled  the  description  of  the  state  or  nation  of  public  law, 
and  which  associated  themselves  as  "  the  united  states "  for  their 
"  common  defence  and  general  welfare,"  becoming  thereby  "  the  sev- 
eral states"  of  "  this  union,"  as  the  constitution  repeatedly  calls  them. 
The  presumption  is  that  each  remained  the  same  political  body  in 
the  union,  that  acted  in  entering  it,  especially  as  there  is  no  provision 
degrading,  or  even  in  the  slightest  degree  changing,  a  state. 

A  fact  commonly  overlooked,  though  very  important,  should  be 
noted  here.  The  word  "  state  "  in  the  constitution,  referring  to  New 
York  or  Virginia,  means  precisely  what  it  does  when  it  refers  to  France 
or  Russia,  i.  e.  the  state  or  nation  of  public  law.  For  instance,  Art. 
III.,  §  2,  provides  for  jurisdiction  of  cases  "between  a  state,  or  the 
citizens  thereof,  and  foreign  states,  citizens  or  subjects."  [See  also 
Amendment  XL]  The  words  "state"  and  "states,"  used  by  the 
fathers  without  qualification,  must  mean  what  they  do  when  used  by 
publicists.  The  language  they  used  must  be  taken  in  its  established 
sense  at  that  time.  [See  I.  Story  Com.  §  207.] 

All  Elections  or  Powers  are  of  States.  —  All  authority  to  elect 
federal  functionaries,  and  all  the  "  powers  delegated  to  them,"  belong 
absolutely  to  the  states,  by  virtue  of  their  original  existence  and 
right.  Article  L,  §  1,  declares  that  "all  legislative  powers  herein 
granted,  shall  be  vested  in  a  congress  of  the  united  states,  which  shall 
consist  of  a  senate  and  house  of  representatives."  The  "  members  " 
of  the  "  house  "  are  to  be  "  chosen  every  second  year,  by  the  people  of 
the  several  states"  who  are  qualified  to  elect  members  of  the  lower 
branch  of  the  state  legislature.  "  The  senate  .  .  .  shall  be  com- 
posed of  two  senators  from  each  state,  chosen  by  the  legislature  thereof, 
for  six  years."  These  provisions  show  that  these  two  bodies,  which 
are  to  possess  and  exercise  "  all  legislative  powers  herein  granted,"  are 
to  be  entirely  elected  by  the  "  states." 

Section  8  of  the  same  article  declares,  that  the  aforesaid  "  congress 
shall  have  power  "  to  levy  taxes,  borrow  money,  regulate  commerce, 
make  the  coinage,  establish  a  postal  system,  declare  war,  raise  armies, 
provide  a  navy,  etc.  In  section  9  are  the  restrictions  put  by  the 
states  upon  their  congress,  i.  e.  "  the  congress  of  the  *  states ; " 


150  FEDERALIZATION. 

and  in  section  10  are  the  inhibitions  imposed  by  the  states  upon 
themselves,  in  which  they  agree  not  to  make  treaties,  grant  letters  of 
marque,  coin  money,  pass  ex  post  facto  laws,  or  such  as  impair  the 
obligation  of  contracts,  levy  duties  without  the  consent  of  congress, 
keep  troops  or  war-ships  in  time  of  peace,  or  engage  in  war,  unless 
actually  invaded,  etc. 

We  now  see  that  the  legislative  provisions  necessarily  imply  distinct 
and  sovereign  states,  voluntarily  united  and  voluntarily  acting  in  the 
union  ;  and  show  that  the  said  states  elect,  by  their  voters,  all  the 
members  of  both  houses  of  congress  —  this  body  having  "  all  legisla- 
tive powers  herein  granted."  Nay,  more,  we  see  that  both  houses  of 
congress  are  elected  by,  and  do  represent,  states  alone  —  such  states 
being  identical  with  "  the  people  of  the  united  states."  Here  also  is 
seen  the  untruth  of  the  assertion  that  the  house  of  represenatives  is 
"  national  "  in  character,  instead  of  federal.  The  representatives  are 
"apportioned  among  the  several  states;"  "each  state  shall  .have  at 
least  one  representative  ;  "  the  filling  of  "  vacancies  in  the  representa- 
tion of  any  state  "  is  provided  for ;  the  representatives  are  to  be  elected 
by  and  in  "  the  several  states ;  "  and  they  are  to  be  a  part  of  "  the 
congress  of  the  *  states.11 

And,  consistently  with  the  above,  Article  II.,  §  1,  declares  that  "the 
executive  power  shall  be  vested  in  a  president ; "  and  that  "  each  state 
shall  .  .  .  appoint  a  number  of  electors,  equal  to  the  whole  number 
of  senators  and  representatives  to  which  the  state  may  be  entitled  in 
tha  congress."  It  is  further  provided  that  these  electors  are  to  meet 
in  the  state,  and  cast  the  vote  of  the  state,  and  transmit  the  same  sealed,  to 
congress,  where,  in  due  time,  it  is  to  be  opened  and  counted  with  the 
others. 

So  far  we  see  that  the  "  deed  "  contains  no  idea  which  is  not  strictly 
one  of  federation,  of  state  authority,  and  state  action.  And  these 
legislative  and  executive  representatives  and  agents  of  the  states,  are 
to  provide  for  and  appoint  all  other  officers  (including  the  judicial 
functionaries)  of  these  leagued  or  federated  states. 

The  Federal  Government  always  Vicarious.  —  The  constitution 
expressly  shows  that  all  federal  "  powers  "  are,  and  remain,  derivative 
from,  and  subordinate  to,  the  states  as  such. 

Article  I.  declares  that  "  all  legislative  powers  herein  granted,  shall 
be  vested  in  a  congress  of  the  united  states."  Article  II.  declares  that 
"the  executive  power  shall  be  vested  in  a  president  of  the  united 
states."  Article  III.  declares  that  "the  judicial  power  of  the  united 
states  shall  be  vested  in  one  supreme  court,"  etc.  Whose  "  judicial 
power  "  is  referred  to  1  "  The  judicial  power  of  the  united  states,"  of 
course.  Whose  legislative  and  executive  authority  is  meant  ?  That 
of  the  same  states. 


THE   TESTIMONY  OF   THE  CONSTITUTION.  151 

But  it  would  be  insulting  the  intelligent  reader  to  argue  such  a 
matter  further.  No  one  can  suppose  that  this  created  thing  and 
agency  called  the  government  could  have  "  absolute  supremacy " 
over  the  states  that  established  it,  or  indeed  over  any  person  or  thing 
whatever. 

All  Citizens  and  Subjects  are  those  of  States.  —  The  next  two 
articles  will  prove  that  all  federal  officers  and  all  citizens  are  citizens 
of  the  states,  and  of  course  respectively  their  subjects  ;  as  well  as  show 
still  further  that  the  states  were  intended  to  be  the  sole  parties  to  and 
actors  in  the  federal  system.  Article  III.  with  Amendment  XI.,  pro- 
vide that  "  the  judicial  power  shall  extend  ...  to  controversies 
between  two  or  more  states ;  between  a  state  and  citizens  of  an- 
other state;  between  citizens  of  different  states;  between  citizens  of 
the  same  state,  claiming  lands  under  grants  of  different  states  ;  and  be- 
tween a  state,  or  the  citizens  thereof,  and  foreign  states,  citizens  and 
subjects,"  but  that  (as  the  amendment  provides)  this  "power  shall 
not  be  construed  to  extend  to  any  suit  against  one  of  the  united 
states  by  citizens  of  another  state f  or  by  citizens  or  subjects  of  any 
foreign  state.  " 

Here  and  in  Article  IV.,  §  2,  we  find  the  whole  "people  of  the  united 
states"  provided  for,  in  reference  to  judicial  matters,  and  privileges 
of  citizenship,  under  the  description  of  citizens  of  states. 

But  let  us  go  on.  Article  IV.  says  :  "  Full  faith  and  credit  shall 
be  given  in  each  state  to  the  public  acts,  records  and  judicial  proceed- 
ings of  every  other  state.  .  .  .  The  citizens  of  each  state  shall  be 
entitled  to  all  privileges  and  immunities  of  citizens  in  the  several 
states"  l 

The  Union  was  made  to  preserve  the  States.  —  The  following 
clauses  of  this  same  Article  IV.  put  it  beyond  doubt  that  the  union 
was  to  be  composed  exclusively  of  states  ;  and  that  the  great  object 
of  forming  it  was  the  preservation  of  them  in  their  full  pre-existent 
integrity  and  sovereignty.  "  New  states  may  be  admitted  by  congress 
into  this  union ;  but  no  new  state  shall  be  formed  or  erected  within 

1  This  is  the  only  citizenship  in  the  united  states,  that  the  fathers  ever  contemplated. 
A  state,  as  will  be  seen,  is  the  members  thereof,  bound  in  the  social  compact.  Look  at 
the  present  constitutions  of  Massachusetts  and  New  York.  The  latter  calls  her  people 
"members"  and  ''citizens"  of  the  state.  Massachusetts  sets  forth  the  actual  social 
compact  in  her  preamble,  and  calls  her  citizen  "a  subject  of  this  state,'1  as  he  is  in  fact 
and  in  right.  In  a  republican  state  the  social  compact  is  the  only  possible  tie  of  alle- 
giance. We  shall  see  this  hereafter,  as  well  as  that  the  only  allegiance  in  our  country  is 
due  to  the  state. 

When  the  phrase  "citizen  of  the  united  states"  is  used,  it  means  a  citizen  and  subject 
of  a  state,  entitled  to  the  benefit  of  this  stipulation  of  his  sovereign,  when  he  goes  to  any 
one  of  the  federalized  states,  i.  e.  he  can  go  to  any  state,  and  have  the  same  "privileges  and 
immunities"  as  the  citizens  of  that  state  enjoy. 


152  FEDERALIZATION. 

the  jurisdiction  of  any  other  state ;  nor  any  state  be  formed  by  the 
junction  of  two  or  more  states  or  parts  of  states,  without  the  consent  of 
the  legislatures  of  the  states  concerned,  as  well  as  of  the  congress.  .  .  . 
The  united  states  shall  guaranty  to  every  state  in  this  union,  a  repub- 
lican form  of  government,  and  shall  protect  each  of  them  against  inva- 
sion," etc.1 

The  "Wills  of  States  must  live  to  amend.  —  Article  V.  provides 
for  amendments  by  the  "  ratification  "  of  three-fourths  of  "  the  states  ;  " 
and  that  "  no  state  without  its  consent  shall  be  deprived  of  its  equal 
suffrage  in  the  senate."  Here  alone  are  two  irrefutable  proofs  of  the 
correctness  hereof,  and  of  state  sovereignty  in  the  union.  1.  The 
phrase,  "  its  consent,"  shows  beyond  question  the  contemplated  sur- 
vival of  the  sovereign  wills  which  acted  to  "  ordain  and  establish  this 
constitution."  2.  States  cannot  ratify  amendments,  without  having 
kept,  for  future  exercise  in  ordaining,  the  wills  that  originally 
"ratified"  and  "ordained."  And  if  the  reader  will  look  thoughtfully 
at  article  V.,  he  will  see  that  the  congress  of  the  states  —  that  is  to 
say,  the  states  collectively  —  is  to  propose  amendments,  and  each  state 
is  to  "ratify,"  i.  e.  "ordain  " — thus  laying  the  additional  federal  law 
on  her  members,  citizens  or  subjects.  Let  it  be  kept  in  mind  that 
government,  including  the  making  and  administering  of  constitutions, 
is  mental  and  functional  action  ;  and  that  mind  must  dwell  in  some 
body,  and  act  through  organs,  while,  as  all  functionaries  are  oath-bound, 
they  must  belong  to  one  of  two  classes,  the  perjured  and  the  unper- 
jured ! 

The  Same  States  made  both  Federal  Compacts.  —  Article  VI. 
provides  that  the  debts,  etc.,  shall  be  as  valid  against  the  united 
states  under  this  constitution,  as  under  the  confederation ;  and  that 
the  constitution,  and  the  laws  made  in  pursuance  of  it,  and  the  treaties, 
"  shall  be  the  supreme  law  of  the  land  ;  and  the  judges  in  every  state 

1  The  phrase  "a  republican  form  of  government"  obviously  means  a  republic,  in 
contradistinction  to  a  monarchy  or  aristocracy ;  a  government  of  the  people  by  them- 
selves, no  matter  what  form  they  choose  to  be  organized  and  to  act  in.  "  Each  state  re- 
•  tains  its  sovereignty"  was  the  solemn  agreement  and  pledge  of  faith  of  all  the  states,  in  the 
constitution  of  1778.  "  Every  state  in  this  union  "  exercised  this  sovereignty,  or  right  of 
self-government,  till  the  full  and  entire  formation  of  the  present  union,  and  hence  till  after 
the  present  constitution  was  "  ordained  and  established."  Hence  it  was  13  sovereignties 
that  "ordained  and  established,"  and  hence  the  above  clause  can  but  mean  that  each 
state  is  guarantied  by  all  in  the  enjoyment  of  the  said  sovereignty,  or  the  right  of  self- 
government.  It  is  a  pledge  of  faith  of  all  to  each  ;  that  she  shall  be  '•'•free.  "  in  will, 
llsovertign  "  in  will,  and  "independent  "  in  will.  And  the  very  essentials  of  a  repub- 
lic are  "freedom,  sovereignty  and  independence,"  in  mental  powers  or  faculties  — i.  e. 
in  perception,  reason,  judgment  and  will,  to  be  exercised  in  government  ;  and  these  dis- 
tinguish the  state  from  the  province  or  county.  The  will  of  a  republic,  or  commonwealth, 
or  state,  must  remain,  in  all  things  above  her  institutions  of  government,  whether  general 
or  local  —  federal  or  state.  It  is  this  alone  which  makes  her  a  free  state  or  republic ! 


THE   TESTIMONY  OF  THE   CONSTITUTION.  153 

shall  be  bound  thereby  .  .  .  ; "  and  all  officers,  both  of  the  federal 
and  state  governments,  are  to  swear  "  to  support  this  constitution." 

The  above  words,  "  constitution "  and  "  confederation"  evidently 
refer  to  the  instrument  used  —  "  the  united  states  "  being  the  identical 
and  absolutely  unchanged  parties  "under"  both;  but  with  great 
unfairness,  Story  and  Webster  refer  to  this  article  in  proof  of  a  change 
"  from  a  confederation  to  another  system  "  of  government,  which  is  not 
a  confederation,  and  which  they  say  is  a  constitution  !  and  furthermore, 
Webster  absurdly  says  "  the  constitution  is  a  government  proper,"  as 
if  the  instrument,  and  the  government  under  it,  were  the  same  political 
entity !  He  might  as  well  have  said,  a  constitution  is  what  is  con- 
stituted ! 

The  Instrument  says  the  States  are  the  Parties.  —  While  all 
the  expounders  of  the  Massachusetts  school  positively  assert  that  the 
people,  as  a  nation,  made  the  constitution,  and  are  the  constituents 
of  the  union,  the  "  deed  "  itself  as  positively  proves  the  contrary,  by 
showing  the  states  to  be  the  sole  parties  to  "  the  union  of  states  " 
called  "  the  united  states."  Let  us  see.  Keeping  in  mind  the  actual 
naming  of  the  states  in  the  first  article,  and  the  constant  recognition 
of  them  through  all  the  provisions  thus  far  quoted,  let  us  bring  to 
view  Article  VII.  This  article,  the  full  force  of  which  does  not  seem 
to  be  appreciated,  prevents  the  possibility  of  honest  controversy ;  for 
it  is  absolute  and  decisive  proof  of  the  states  being  the  sole  parties  to 
the  instrument,  and  hence  superior  to  it  in  every  possible  respect,  as 
well  as  sovereign  over  the  government  provided  for.  It  reads  as 
follows  :  "  The  ratification  of  the  conventions  of  nine  states  shall  be 
sufficient  for  the  establishment  of  this  constitution,  between  the  states 
so  ratifying  the  same." 

Unquestionably,  then,  1st,  that  which  is  to  establish,  or  suffice 
for  "establishment,"  is  "ratification;"  2d,  "states"  are  to  "ratify;" 
3d,  therefore,  "  the  states "  are  to  "  establish "  the  constitution  and 
government. 

No  question  can  arise  that  conventions  were  to  declare  the  sovereign 
wills  of  states,  for  the  language  is,  "  between  the  states  so  \i.  e.  by 
conventions]  ratifying  the  same." 

And  we  must  keep  in  mind,  too,  the  character  in  which  the  states 
acted,  until  the  establishment  of  the  constitution  was  completed  — 
that  of  sovereign  states.  See  the  second  article  of  the  "  federal  con- 
stitution," which  was,  in  1788,  or  perhaps  on  the  4th  of  March,  1789, 
superseded  by  the  present  one. 

In  order  that  we  may  now  and  here  fully  appreciate  the  gross  error 
of  the  Massachusetts  school,  let  us  exhibit  the  preamble  and  Article 
VII.  in  juxtaposition  —  keeping  in  mind  the  naming  of  the  states,  and 


1 54  FEDERALIZATION. 

their  recognition  throughout,  as  well  as  the  fact  that  "  united  "  is 
merely  an  adjective  :  "  We,  the  people  of  the  united  states  ...  do 
ordain  and  establish  this  constitution.  .  .  .  The  ratification  of  the 
conventions  of  nine  [of  the  said]  states  shall  be  sufficient  for  the  estab- 
lishment of  this  constitution  between  the  states  so  [{.  e.  by  conven- 
tions] ratifying  the  same."  It  is  certain,  then,  that  several  states, 
and  not  a  nation,  "established  "  the  system,  and  remained  the  sove- 
reigns of  it. 

The  "  Executed  "  "  Deed."  —  To  give  a  correct  idea  of  the  consti- 
tution as  a  completed  instrument,  binding  the  parties  —  whether  in 
law  or  in  faith,  it  matters  not  —  it  should,  as  above  shown,  be  published 
with  the  names  of  the  states,  and  the  expressions  they  used  in  ratifying 
and  ordaining — just  as  should  any  other  deed,  compact,  or  instrument 
whatever.  Who  ever  before  heard  of  a  completed  contract,  or  "  exe- 
cuted "  "  deed  "  being  published  —  with  the  intent  of  showing  it  as  such 
—  with  the  names  of  the  lawyers  who  drew  it  up,  but  not  the  names 
of  the  parties  ]  How  would  such  a  document  look  in  court  as  the 
basis  of  a  suit  against  a  party?  Nay,  more,  how  does  it  look  when 
cited  to  tell  its  own  history  and  character  1  When  Mr.  Webster 
asked,  "  What  does  it  say  of  itself  1 "  the  last  thing  in  the  world  to 
serve  his  purpose  was  its  answer  ! 

It  is  now  evident  that  to  get  a  complete  idea  of  "  the  constitution 
of  the  united  states,"  the  instrument,  the  names  of  the  ordainers,  and 
the  ordaining  words,  should  be  presented  together,  in  a  pictorial  rep- 
resentation, as  it  were,  just  as  is  done  above  [ante,  p.  139].  The  acts 
of  ratification  undoubtedly  vitalize  the  instrument.  Suppose  courts  did 
not  take  official  cognizance  of  the  constitution,  and  it  were  permitted 
to  be  denied  that  it  was  law  in  a  given  state,  the  act  of  ordaining  or 
adopting  would  be  indispensable  to  show  its  "  establishment "  in  her 
territory,  and  over  her  people.  There  is,  as  to  any  given  state,  but 
one  ratifying,  ordaining,  or  establishing  act  in  existence.  Nobody 
ever  heard  of  any  other  than  the  act  of  ratification. 

The  Compact  was  "  done  "  only  by  States.  —  Instead  of  the  con- 
stitution being  "done"  by  the  convention  of  1787,  this  body  was 
composed  of  mere  agents  of  the  states,  and  was  under  special  instruc- 
tions from  them  to  devise  a  plan,  and  report  it  to  congress,  to  be  sent 
by  that  body  to  the  respective  states  for  their  absolute  decision,  —  each 
for  herself,  pro  or  con.  Each,  through  her  legislature,  called  her  con- 
vention which  her  people  elected.  Each  held  it  in  her  own  time,  and 
at  her  own  place  ;  and  each  had  the  universally  conceded  right  to  re- 
ject, and  two  of  them  did  so.  All  finally  ratified  ;  three  in  1787,  eight 
in  the  different  months  of  1788,  one  in  1789,  and  the  last  in  1790; 
each  convention  by  vote  declaring  the  will  of  a  corporate  body,  a  sove- 


UN 


THE  TESTIMONY  OF  THE   CONSTITUTION. 


reign  commonwealth.  The  convention  of  1787  had  simply  "done" 
what  would  have  been  waste  paper,  but  for  the  life  and  validity,  which 
was  "  done  "  to  it  by  these  thirteen  absolutely  sovereign  wills.  By 
these  wills,  and  by  them  only,  "the  constitution  of  the  united  states" 
was  "  done,"  the  federation  formed,  and  the  government  "  estab- 
lished." 

The  statement  of  Daniel  Webster,  in  his  speech  of  1833,  places 
this  matter  beyond  controversy  :  "  Until  the  constitution  was  ratified 
by  nine  states,  it  was  but  a  proposal  —  the  mere  draft  of  an  instru- 
ment. It  was  like  a  deed  drawn  but  not  executed  ;  ...  it  was  in- 
operative paper ;  ...  it  had  no  authority ;  it  spoke  no  language." 

The  constitution  contains  no  sign  of  any  other  theory  than  the  one 
herein  set  forth ;  and  no  leading  father  can  be  cited  in  opposition  to 
it.  The  "  powers  "  of  the  instrument  must  be  delegations  of  states  ; 
the  restrictions  on  states  must  be  their  agreements;  the  government 
must  be  their  creation;  the  administrators  of  it  must  be  their  electees 
and  agents;  all  "the  people"  must  be  their  members,  citizens,  and 
allegiant  subjects ;  all  the  voting  authority  and  suffragists  of  the  coun- 
try are  exclusively  theirs;  the  only  creating,  ordaining,  delegating, 
granting  and  owning  authority,  the  instrument  shows  to  be  theirs ;  and, 
in  short,  the  states  are  recognized  and  referred  to  everywhere,  as  the 
be-all  and  the  end-all  of  the  system. 

The  union  of  states  is  simply  a  voluntary  association  of  sister 
republics.  A  change  to  involuntariness,  or  in  other  words,  to  an  in- 
dissoluble union,  cannot  be  made  without  destruction  of  the  right  of 
self-government,  —  the  very  thing  that  characterizes  a  republic,  and 
the  degrading  of  the  state  to  a  province.  And  the  imperialism  or 
"  absolute  supremacy  "  of  "  the  government,"  over  allegiant  states, 
exercised  in  keeping  the  states  together  against  their  respective  wills, 
involves  perjured  usurpation  and  flagrant  treason,  on  the  part  of  fed- 
eral officials. 

In  reflecting  on  this  subject,  it  is  well  to  keep  constantly  in  mind 
these  facts  :  the  federal  government  was  created  and  placed  over  citi- 
zens, by  the  acts  of  their  respective  states ;  and  each  state,  until  she 
had  fully  deliberated,  and,  by  adopting  the  constitution,  had  become 
a  party,  was  acting  in  the  character  agreed  on  by  all,  in  the  solemn 
league  and  covenant  then  subsisting,  to  wit :  "  Each  state  retains  her 
sovereignty"  No  power  to  constrain  her  will  did  or  could  then  exist. 
Only  a  voluntary  federation  of  sovereignties  was  possible  ;  and  it  was 
formed. 

It  is  also  well  to  remember  that,  at  the  making  of  the  union,  states 
occupied  all  the  country,  and  included  all  the  people,  and  governed 
both,  exclusively  by  their  will,  and  hence  left  no  persons  or  territory 


156  FEDERALIZATION. 

to  make  a  nation  of.  "  The  people  "  had  no  organized  or  political 
existence  or  capacity  to  act  in  political  government,  except  as 
states. 

Only  a  Federation  was  possible.  —  In  the  great  work  before 
them,  the  fathers  had  little  or  no  opportunity  for  high  creative  or 
organizing  statesmanship.  The  entities  or  materials  to  build  with, 
were  all  matters  of  fact,  pre-existent  and  perfect ;  the  main  conditions 
were  all  forewritten ;  and  natural  logic  carried  the  architects,  with  the 
inexorableness  of  Divine  decrees,  to  a  federation.  Neighboring,  kin- 
dred, republican  and  friendly  societies,  each  free  and  sovereign,  and 
all  with  cognate  principles  and  mutual  interests,  were  to  associate,  to 
preserve  themselves,  and  the  precious  rights  of  their  members.  They 
could  but  plan  through  agents,  and  themselves  vitalize  the  plan.  So 
that  if  Hamilton,  Morris,  Wilson,  Washington,  and  others,  really  did 
wish  —  as  some  assert,  though  without  proof  —  to  consolidate  or 
nationalize  the  states, 

"  They  builded  better  than  they  knew !  " 

And  they  afterwards  confessed  that  such  purpose,  if  ever  held,  was 
not  accomplished  ;  and  declared  that  a  federation  of  sovereign  com- 
monwealths was  actually  made  !  [Part  I.,  Chap.  VII.] 


PART  III. 
FALLACIOUS    EXPOSITION. 


"...  full  of  subtile  sophismes  which  doe  play 
With  double  sences,  and  with  false  debate." 

FAERIE  QUEENE. 


PART  III. 
FALLACIOUS    EXPOSITION. 


CHAPTEE  I. 
CHARGES  AND  EXPOUNDINGS  IDENTICAL. 

THE  false  charges,  made  by  the  anti-federalists  to  defeat  the  consti- 
tution, though  promptly  met  and  decisively  refuted,  were  subse- 
quently adopted  by  the  professed  friends  and  so-called  expounders 
of  our  system,  as  the  true  expositions  thereof,  —  a  proceeding  much 
like  vindicating  a  man's  character,  by  ascribing  to  him  the  evil  traits 
which  have  been  charged  by  his  enemies  for  the  purpose  of  destroy- 
ing it. 

These  were  ascriptions  of  intent  and  meaning ;  and  though  Wash- 
ington, Hamilton,  Madison,  and  all  the  rest  of  the  constitutionists 
declared  and  conclusively  showed  —  as  is  indicated  in  Part  I.,  Chapter 
VII.  — that  the  intent  and  meaning  were  directly  the  reverse  of  what 
was  charged,  yet  most  sedulously  have  the  said  expounders,  during 
the  last  half  of  our  century  of  federal  liberty,  asserted  and  taught 
the  false  and  reprobated  theory  as  the  true  one  ! 

In  so  doing,  they  necessarily  entered,  and  travelled  in,  the  path  of 
sophistry,  and  committed  the  flagrant  wrongs  now  exposed. 

Comparison  of  Charges  and  Expoundings.  —  I  proceed  to  place 
the  original  and  untrue  charges,  and  the  pretended  expositions,  side  by 
side,  under  five  heads,  so  that  we  can  take  in  at  a  glance  the  gross 
interpretative  impositions  to  which  the  American  people  have  been  so 
long  subjected.  The  enemies  and  the  expounders  both  contend  that 
by  the  present  constitution  : 

1.  The  states  were  made  into  one  state ; 

2.  A  federacy  was  changed  to  a  nation ; 

3.  The  general  government  is  a  sovereignty  ; 

4.  "  The  government "  is  the  final  judge  of  its  authority ; 

5.  A  state  and  a  county  are  alike  in  status,  and  equal  in  rights. 


160 


FALLACIOUS  EXPOSITION. 


I. —  THE    STATES    MADE    INTO    ONE    STATE. 


Said  PATRICK  HENRY  in  the  Vir- 
ginia ratifying  convention  :  "  It  must 
be  one  great  consolidated  national 
government  of  the  people  of  all  the 
states."  [III.  Ell.  Deb.  227.] 

For  similar  views  of  ELBRIDGE 
GERRY,  see  I.  Ibid.  493. 


Said  WEBSTER,  in  his  speeches  of 
1830  and  1833  :  "  The  federal  con- 
stitution is  established  by  the  people 
of  the  united  states  in  the  aggregate. 
.  .  .  The  union  is  the  association  of 
the  people."  "  It  is  the  people  who 
speak,  and  not  the  states." 


II.  —  THE    CHANGE    FROM    A    FEDERACY    TO    A    NATION. 


Said  PATRICK  HENRY  :  "  This  is 
an  alarming  transition  from  a  confed- 
eracy to  a  consolidated  government." 
[III.  Ibid.  44.] 

Lowndes,  Martin,  and  Lansing 
maintained  the  same  position.  [See 
Ell.  Deb.  passim^] 


Said  WEBSTER  in  his  speech  of 
1833  :  "  All  contemporaneous  history 
shows  that  a  change  was  made  from 
a  confederacy  of  states  to  another 
system."  And  the  Supreme  Court 
of  the  United  States  have,  through 
Judge  Story,  declared  the  same  thing. 
[Gibbon  w.  Ogden,  9  Wheaton,  1.] 


III.  —  THE  GENERAL  GOVERNMENT  A  SOVEREIGNTY. 


LANSING,  WILLIAMS  and  SMITH, 
in  the  New  York  convention,  and 
HENRY  and  MASON  in  the  Virginia 
one,  contended  that  the  constitution 
is,  by  the  will  of  the  people,  expressed 
in  the  "  supreme  law  "  clause,  placed 
above  the  states  ;  and  that  the  gen- 
eral government  can  therefore  con- 
trol every  power  that  would  impede 
its  operations.  [II.  Ibid.  374,  377.] 

WILLIAMS  said  :  "  Congress  is  the 
highest  power  in  the  government." 
"Whatever  they  judge  necessary  for 
the  proper  administration  of  the 
powers  lodged  in  them,  they  may 
execute  without  any  check  or  impedi- 
ment." [Ibid.  338.] 


Said  WEBSTER  in  his  speech  of 
1833  :  "  This  constitution,"  etc.,  "  is 
the  supreme  law  of  the  land."  "  So 
far  as  the  people  have  expressed  their 
will  in  the  constitution,  so  far  state 
sovereignty  is  effectually  controlled." 

See  next  point  for  expressions  of 
Webster,  making  fuller  the  accord 
with  Williams.  See  also  quotation 
from  Curtis  under  the  next  point. 

The  federal  Supreme  Court  have 
recently  said  that  the  states  submitted 
themselves  to  the  dominion  of  a 
government,  etc.  [Cruikshank  Case, 
1876.] 


IV.  —  THE    GOVERNMENT    THE    FINAL    JUDGE    OF    ITS    AUTHORITY. 


Said  LUTHER  MARTIN  :  "  By  its  Said  WEBSTER,  in  his  speech  of 
[i.  e.  the  government's]  determi-  1833 :  "  The  government  of  the 
nations  every  state  must  be  bound." 
[I.  Ibid.  380.] 


Again  -. 


united  states  does  possess,  in  its  ap- 
propriate departments,  the  authority 
All  courts,  whether  fed-    of  final  decision  on  questions  of  dis- 


eral  or  not,  would  be  bound  by  oath    puted  power." 


CHARGES  AND  EXPOUNDINGS   IDENTICAL. 


161 


to  give  judgment  according  to  the 
laws  of  the  union." 

Said  SMITH,  in  the  New  York  con- 
vention :  "  The  general  government 
has  moreover  this  advantage  :  all  dis- 
putes relative  to  jurisdiction  must  be 
decided  in  a  federal  court."  [II.  Ell. 
Deb.  332,  378.  See  also  Lansing, 
p.  354.] 

It  was  claimed  generally  by  the 
enemies,  that  the  general  government 
was  to  arbit  finally  on  all  questions 
concerning  jurisdiction. 


He  also  said  in  the  same  speech  : 
"It  rightfully  belongs  to  congress, 
and  to  the  courts  of  the  united  states, 
to  settle  the  construction  of  this  su- 
preme law  in  doubtful  cases." 

GEORGE  T.  CURTIS,  in  his  argu- 
ment in  the  Dred  Scott  case,  Dec. 
18,  1856,  said:  "  Congress  is  .  .  . 
the  absolute,  supreme,  and  final 
judge  of  what  the  constitution  has 
committed  to  its  political  discre- 
tion." 


V.  —  A    STATE    AND    A    COUNTY    EQUAL    IN    RIGHTS. 

Said  TREDWELL  in  the  New  York  Said  LINCOLN,  after  he  was  elected 
convention  :  "  The  sole  difference  to  the  Presidency :  "  In  what,  or 
between  a  state  government  under  principle,  is  a  state  better  than  a 
this  constitution,  and  a  corporation  county  ? "  His  contention  was  that 
under  a  state  government,  is,  that  states  had  "  no  status  or  rights,"  but 
a  state  being  more  extensive  than  a  those  given  to  them  in  the  national 
town,  its  powers  are  likewise  pro-  constitution  ;  and  that  in  rights,  states 
portionally  extended,  but  neither  of  and  counties  were  alike, 
them  enjoys  the  least  share  of  sove-  WEBSTER,  in  his  speech  of  1833, 
reignty."  [Ibid.  403.]  said  substantially  the  same  thing, 

Many  extracts  like  this  could  be  viz.  :  that  "  state  sovereignty  is  ef- 
given  from  the  contemporaneous  foes  fectually  controlled  "  by  the  govern- 
of  the  constitution.  ment. 

The  dictum  of  the  federal  Supreme 
Court  heretofore  given,  is  idem  so- 
nans  with  the  above. 

"  Look  here,  upon  this  picture,  and  on  this  ; 
The  counterfeit  presentment  of  two  brothers." 

Let  us  stop  and  reflect !  Did  the  American  people  really  adopt  the 
consolidation  that  they  feared,  and  hated,  and  scorned  so  much,  that  the 
mere  suspicion  of  it  well  nigh  caused  the  repudiation  of  the  system  1 
To  appreciate  the  great  and  general  dread  of  consolidation,  or  destruc- 
tion of  the  commonwealths,  let  the  reader  recur  to  the  views  of  Fisher 
Ames,  and  those  of  Chancellor  Pendleton,  pages  81  and  110  supra. 

In  justice,  however,  to  pure  patriots,  I  should  here  say,  en  passant, 
that  Henry,  Mason,  Martin,  Lowndes,  Yates,  Lansing,  Gerry  and 
others,  were  opponents  of  the  constitution,  because  they  were  friends 
of  liberty,  which  they  thought  or  feared  the  system  endangered. 
Their  idea  was,  that  it  might  reduce  the  commonwealths  to  their  then 
recent  provincial  condition,  and  make  the  revolution  nugatory. 

11 


162  FALLACIOUS  EXPOSITION. 

The  Federal  simulacrum.  Expositions,  thus  originating,  necessi- 
tated the  misstated  facts,  the  abuse  of  logic,  and  the  perversion  of 
language,  of  which  sophistry  is  composed ;  and  finally  became  formu- 
lated as  commentaries,  judicial  decisions,  obiter-dicta,  party-platforms 
and  so-called  constitutional  arguments,  through  which  media  alone  the 
federal  instrument  was  seen,  —  the  result  being  virtually  a  spurious 
constitution. 

And  under  the  teaching  and  lead  of  politicians  —  who  as  a  class 
have  become  the  greatest  enemies  of  liberty  —  the  people  actually 
turned  away  from  the  real  system,  and  the  golden  words  of  the  fa- 
thers, as  well  as  the  truths  of  political  philosophy  ;  and  the  very  oppo- 
sites  of  them  all  became  "  public  convictions  "  [for  this  phrase  see 
quotation  from  Mr.  Curtis  in  the  opening  of  the  next  chapter]. 
Perversion,  for  gaining  and  effectuating  what  the  constitution  denies 
and  prohibits,  has  been  so  long  habitually  practised,  that  a  concor- 
dant usage  has  gradually  supervened,  and  the  precious  compact  is 
hidden  by  a  simulacrum  ! 

The  Sheik  al  Gebel.  —  Hassan  Sabah,  the  founder  of  the  order  of 
Assassins  —  commonly  called  the  "Old  Man  of  the  Mountain,"  who 
flourished  near  the  shore  of  the  Caspian  in  the  llth  century,  "com- 
posed for  his  dais  or  initiated,  a  catechism  consisting  of  seven  heads, 
among  which  were  implicit  obedience  to  their  chief;  secrecy;  and  the 
principle  of  seeking  the  allegorical,  and  not  the  plain  sense  of  the 
Koran,  by  which  means  the  text  of  that  book  could  be  distorted  to 
signify  anything  which  the  interpreter  wished."  [I.  Univ.  Hist. 
240.  Encyc.  Brit,  verbo  Assassin.] 

In  the  formation  of  the  union,  and  for  many  years  thereafter,  Mas- 
sachusetts held  the  first  place  as  the  exemplar  of  institutional  liberty, 
and  the  representative  of  statehood.  But  to  the  grand  old  mother 
came  degenerate  sons  —  men  who,  like  the  Sheik  al  Gebel,  founded 
an  exegetical  system  to  distort  the  plain  sense,  the  evident  purpose  of 
the  constitution,  so  as  to  make  it  provide  for  a  nation  of  provinces, 
instead  of  a  confederacy  of  states,  —  the  central  power  of  the  former 
promising  advantages  to  sections  and  classes,  as  well  as  personal  gains, 
which  a  compact  among  sovereign,  equal,  watchful,  and  jealous  states, 
covering  the  actual  points  contemplated,  and  leaving  out  all  others, 
with  strict  construction  and  faithful  execution  of  powers,  would  never 
permit. 

Judge  Story's  Relation  to  these  Perversions.  —  As  head- 
master of  the  Massachusetts  school,  Judge  Story  succeeded  Nathan 
Dane,  who,  after  having  striven  with  others  to  prevent  the  adoption 
of  the  constitution,  revived  the  charges  they  had  made  against  it,  and 
foisted  them  upon  it  as  expositions. 


CHARGES   AND  EXPOUNDINGS   IDENTICAL.  163 

Whether  Judge  Story  was  his  disciple  and  follower  in  this  matter, 
I  am  not  prepared  to  say ;  but  he  quotes  Dane  with  approval,  and 
neglects,  or  fails  to  quote,  all  the  advocates  of  the  constitution,  both 
of  his  own  state,  and  elsewhere,  save  such  as  suit  his  purpose.  Why 
does  he  confine  his  citations  of  contemporaneous  evidence  to  Dane, 
Henry,  and  other  known  enemies?  Why  does  he  not  cite  the  in- 
structive debate  of  the  ratifying  convention  of  Massachusetts'?  Why 
does  he  not  quote  from  the  other  debates,  —  say  those  of  New  York, 
Pennsylvania  and  Virginia  ]  Why  does  he  nearly  ignore  the  important 
parts  of  the  Federalist  1  WThy  does  he  not  quote,  fully  and  fairly  upon 
the  points  he  makes,  from  Washington,  Franklin,  Hamilton,  Madison, 
Livingston,  Patterson,  Wilson,  McKean,  Coxe,  Dickinson,  Pendleton, 
Randolph,  Nicholas,  Corbyn,  Marshall,  Davie,  Iredell,  and  others  1  Is 
it  because  they  are  unanimous  against  his  cherished  dogma  —  that  an 
undivided  nation,  from  the  plenitude  of  its  political  sovereignty,  formed 
and  empowered  b'oth  general  and  state  governments  ?  When  he  resorted 
to  contemporaneous  debates,  he  found  his  theory  of  the  constitution, 
only  in  the  shape  of  charges  made  by  enemies,  for  the  purpose  of  de- 
feating it.  These  he  avails  himself  of  as  follows  :  "  It  is  also  histori- 
cally known  that  one  of  the  objections  taken  by  the  opponents  of  the 
constitution  was,  *  that  it  is  not  a  confederation  of  states,  but  a  govern- 
ment of  individuals.' "  [I.  Story  Com.  §  356.]  By  recurring  to  the 
text  the  reader  will  see  (what  the  word  "  also  "  indicates)  that  Judge 
Story  introduces  this  as  cumulative  evidence  of  the  truth  of  his 
theory.  He  plainly  admits  the  theory  of  the  enemies  to  be  his. 
They  charged  it  to  defeat  the  system.  He  uses  their  charges  as 
explanations  of  it,  though  they  are  contradicted  and  refuted  by  all 
the  fathers.  He  quotes  Patrick  Henry,  the  most  determined  enemy 
of  the  system,  as  follows  :  "  That  this  is  a  consolidated  government 
is  demonstrably  clear.  The  language  is,  'we,  the  people,'  instead  of 
1  we,  the  states.'  States  are  the  characteristics  and  soul  of  a  confed- 
eration. If  the  states  be  not  the  agents  of  this  compact,  it  must  be 
one  great  consolidated  national  government  of  the  people  of  all  the 
states."  [Ibid.  §  358,  note  and  authorities  cited.] 

Now,  here  is  a  professed  friend  and  expounder  of  the  constitution, 
predicating  of  it  precisely  the  assertion  made  —  as  a  charge  to  defeat 
it  —  by  its  most  bitter  enemy;  and  quoting  the  statement  of  that 
enemy  to  prove  the  correctness  of  his  exposition.  Nay,  more,  he  ig- 
nores or  suppresses  the  volumes  of  opposing  statements  made  by  the 
advocates  of  the  constitution,  and  fails  to  state  that  it  is  also  "  histori- 
cally known  "  that  the  triumphant  refutation  of  these  charges  of  Henry, 
Martin,  Lowndes,  Dane,  and  others,  alone  saved  the  constitution  from 
overwhelming  defeat ;  and  furthermore,  that  these  charges  operated 


164  FALLACIOUS  EXPOSITION. 

as  warnings  to  the  people,  and  induced  them,  in  their  state  conven- 
tions, and  everywhere  among  themselves,  and  through  the  press,  em- 
phatically to  repudiate  (as  their  deputies  had  done  in  the  convention 
of  1787),  every  idea  of  a  national  government,  or  a  governmental 
sovereignty;  and,  moreover,  to  make  the  9th,  10th,  and  llth  amend- 
ments, to  prevent  the  possibility  of  these  curses  ever  supervening. 

Probable  Reasons  for  Judge  Story's  Error.  —  It  is  known,  how- 
ever, that  Judge  Story  did  not  originate  these  dogmas ;  and  it  is  con- 
jectured that  without  that  close  research  and  profound  thought  that 
so  momentous  a  subject  required,  he  adopted  the  views  and  copious 
citations  of  Dane,  than  whom  there  was  no  abler  lawyer  or  more  com- 
petent investigator.  Moreover,  from  1811  to  his  death  in  1845, 
Judge  S.  was  a  member  of  the  federal  Supreme  Court,  which,  being 
interested,  generally  favored  the  idea  of  a  strong,  self-perpetuating 
government,  and  leaned  to  national  views.  So  that,  besides  being 
prejudiced,  when,  in  the  era  of  perversion  —  say  from  1830  to 
1835 — the  said  dogmas  came  into  prominence  as  a  system,  he  was 
engaged  in  judicial,  professorial,  and  book-making  labors,  and  hence 
was  compelled  to  remit  the  research  and  argument  to  sustain  the  new 
exegesis,  to  Webster  and  Jackson,  who  did  not  investigate,  because, 
like  themselves,  the  champions  of  the  commonwealths  merely  assumed 
the  premises  of  their  arguments.  Both  parties  needed  to  be  driven 
to  industrious  research  for  the  facts  of  the  case  ! 

Were  the  Motives  worthy  of  the  Occasion  ?  —  It  seems  to  me 
that  all  the  contestants  cared  more  —  as  is  the  case  with  partisans 
generally— for  keeping  or  getting  power,  for  gaining  material  advan- 
tage, or  for  gladiatorial  triumph,  than  for  basing  our  polity  on  the  deep 
and  earth-wide  rock  of  truth,  and  measuring  it  with  the  mete-wand  of 
Eternal  justice.  They  cared  more  for  victory  than  for  right ! 


CHAPTER  II. 
WHO  MAKES  "  SUPREME  LAW." 

I  WILL  now  proceed  to  take  up,  seriatim,  and  test  the  truth  and 
the  constitutional  principle  of  the  leading  dogmas,  or  so-called  in- 
terpretations of  the  "Massachusetts  school." 

A  conspicuous  neutral  journal,  a  few  years  ago,  mentioned  the  fact 

that  the Railway  Company  of  New  York  had  so  contrived 

a  book,  that  their  visitors,  in  registering,  unwittingly  signed  a  memo- 
rial to  the  Legislature  for  a  charter,  subsidy,  or  some  other  grant  to 
the  company ;  and  remarked  that  "this  neat  little  trick  is  worthy  of 
the  best  minds  ever  produced  by  Massachusetts." 

As  to  politicians  they  are  alike  everywhere,  and  that  state  is  by  no 
means  peculiarly  deserving  of  this  fling.  All  of  them  trick  for  party  or 
personal  gain  ;  and  so  degraded  is  partisanship  nowadays,  that  even  the 
most  sacred  principles  of  the  constitution  are  subjects  of  compromises, 
adjustments,  platforms,  party  legislation,  etc.  In  principle  the  neat 
little  trick  is  like  some  of  the  so-called  interpretations  I  have  to 
expose,  just  as  the  Thracian  robber's  acts  were  like  those  of  Alexander 
the  Great.  But  the  difference  in  degree,  if  not  in  respectability,  is 
vast.  The  former  will  ever  remain  anecdotical,  and  too  little  to  be 
worth  authenticating,  while  the  expoundings  of  Dane,  Story,  and 
Webster,  and  the  results  thereof,  will  live  as  long  as  history  itself. 
Mighty  armies  rallied  upon  their  phrases,  and  marched  to  the  music 
of  their  sounding  words.  At  their  bidding  hundreds  of  thousands 
were  slain,  wide  regions  desolated,  and  states  reduced  from  freedom 
to  the  most  abject  bondage  of  provinces. 

I  will  attempt  no  allotment  of  credit  among  the  above  worthies. 
George  Ticknor  Curtis,  the  biographer  of  Daniel  Webster,  claims  all 
the  glory  for  his  hero,  as  follows  :  ...  "  It  is  to  him  that  we  are  to 
trace  that  great  body  of  public  convictions,  which,  ten  years  after  he 
was  laid  in  the  tomb,  enabled  the  government  of  the  United  States 
to  draw  forth  the  energies  of  a  people  who  would  never  have  gone 
through  the  late  civil  war  without  those  convictions.  .  .  .  He  knew 
well,  that  if  the  issue  did  come  in  this  terrible  form,  he  had  prepared 


166  FALLACIOUS  EXPOSITION. 

the  intellect  of  his  country,  with  that  which  could  alone  justify  and 
support  the  efforts  that  must  be  made.  He  knew  always  that  his  own 
fame  was  completely  identified  with  the  doctrine  that  regards  the  con- 
stitution, not  as  a  compact,  but  as  a  law."  The  italics  are  in  the 
text. 

"  What  is  our  System  ?  "  is  Matter  of  Fact.  —  Common  sense 
would  say  that  the  question  whether  our  general  organism  is  "united 
states,"  or  an  undivided  nation;  a  "union  of  states,"  or  a  union  of 
persons,  is  one  of  fact,  to  be  settled  by  the  constitution  itself;  and 
in  cases  of  doubt,  by  historical  evidences  of  intention.  But  the 
expounders,  to  accomplish  their  ends,  set  up  before  the  sacred  instru- 
ment a  screen  of  what  they  call  "  interpretation,"  or  "commentary," 
which  is  composed  of  untruths,  misstated  facts,  garbled  quotations, 
and  sophistical  arguments;  and  thus  produce  the  said  "public 
convictions." 

The  constitution  was  established,  and  its  character  was  fixed,  when, 
nine  states  had  ratified  it.  That  character  was  a  matter  of  fact  and 
technical  description.  But  no  question  of  interpretation  could  properly 
arise,  till  after  the  election  and  organization  of  the  government ;  and, 
even  then,  not  till  the  legislature,  executive,  or  judiciary  should  find, 
involved  in  a  case  before  them,  some  doubtful  provision,  phrase,  or 
word,  to  be  interpreted  according  to  accepted  rules,  for  the  purpose  of 
ascertaining  the  intention  of  the  ordaining  power  in  using  it.  [See 
Part  L,  Ch.  VIII.] 

Proceeding  now  to  show  how  the  "  Public  Convictions  "  were 
produced,  and  to  expose  the  untruth  and  sophistry  of  the  leading  so- 
called  interpretations  of  the  Massachusetts  school,  I  notice  en  passant 
the  above  expression  of  Mr.  Curtis,  that  Daniel  Webster's  "  fame  is 
identified  with  the  doctrine  that  regards  the  constitution  not  as  a 
compact,  but  as  a  law.1' 

The  instrument  is  both  a  compact  and  a  law.  It  purports  to  be, 
and  is,  A  COMPACT  because  it  is  to  be  adopted  by  separate  ratifiers, 
they  all  being  pre-existent  and  complete  states  (each  of  them  acting 
with  its  own  will  through  a  convention)  ;  and  their  ratifications  are 
declared  to  be  "sufficient  for  the  establishment  of  this  constitution  ; "  and, 
secondly,  it  calls  itself  A  LAW  —  "  the  supreme  law  of  the  land." 

In  the  third  place,  the  instrument  is  a  CONSTITUTION  of  a  govern- 
mental agency.  I  doubt  if  any  one  understands  the  instrument,  who 
does  not  view  it  in  this  threefold  aspect. 

Aside  from  the  constituting  idea,  it  is,  like  a  treaty  between  or 
among  powers  of  Europe,  both  a  compact  and  a  law,  it  being  the  latter 
to  the  subjects  of  each  power,  even  without  a  declaration  to  that  effect. 
The  constitution  itself  calls  a  treaty  (which  is  a  compact)  "  the  law 
of  the  land."  [Art.  VI.] 


WHO  MAKES   "SUPREME  LAW."  167 

So  that  Mr.  Curtis'  distinction  is  worthless,  both  as  to  the  fame  of 
Mr.  Webster,  and  as  "that  which  could  alone  justify  and  support" 
our  unrepublican  war.  But  let  us  pass  to 

INTERPRETATION  No.  1.  —  THE  NATION  ORDAINED. 

To  prove  that  the  federal  constitution  is  made  by,  rests  upon,  and 
derives  its  authority  from,  the  aggregate  people  of  the  united  states 
as  a  nation,  Nathan  Dane  writes  that  the  instrument  "  is,  as  the 
people  have  named  it  truly,  a  constitution ;  and  they  properly  said, 
*  We,  the  people  of  the  united  states,  do  ordain  and  establish  this  con- 
stitution,' and  not  '  we,  the  people  of  each  state/  "  Judge  Story 
quotes  him  approvingly,  and  then  says  :  "  There  is  nothing  in  the 
constitution  intimating  it  to  be  a  compact.  .  .  .  The  language  is, 
we,  the  people  of  the  united  states,  do  ordain  and  establish  this 
constitution.  .  .  .  The  people  do  ordain  and  establish,  not  contract 
and  stipulate  with  each  other.  The  people  of  the  united  states, 
not  the  distinct  people  of  a  particular  state  with  the  people  of  the 
other  states.  The  people  ordain  and  establish  a  *  constitution,''  not 
a  '  confederation:  "  The  italics  are  Judge  Story's.  [I.  Com.  §  352.] 
Webster  expresses  himself  in  a  similar  manner.  [Speech  of  1833.] 
And  so  does  the  federal  supreme  court,  Judge  Story  —  the  above- 
quoted  "  commentator  "  —  being  the  organ  of  the  court.  [1  Wheaton, 
324.] 

Ignoring  or  concealing  Facts  does  not  destroy  Them.  —  It  is 
unquestioned  history,  that  each  and  every  one  of  the  thirteen  original 
states  held  a  convention,  to  ratify  or  reject  the  federal  compact ;  that, 
after  debate,  the  said  convention  did,  by  vote,  ratify  it ;  and  that  the 
said  convention  was  elected  and  empowered  solely  by  the  said  state, 
and  only  acted  for  her.  And  moreover,  the  will  of  the  state  was  inva- 
riably expressed  by  a  solemn  instrument. 

Leaving  these  ordinances  of  ratification  out  of  the  argument  did  not 
destroy  them.  Did  the  expounders  forget  that  the  long  debates  upon 
them,  lasting  two  or  three  years  ;  their  final  adoption  by  the  states 
respectively  in  convention  ;  the  congress  receiving  and  declaring  them 
as  proof  of  the  establishment  of  the  compact,  and  as  the  basis  of  start- 
ing the  new  government,  are  indestructible  facts  in  the  history  and 
archives  of  the  country  1  Did  they  forget  that  these  ordinances  show 
precisely  who  ordained  and  established  the  constitution  1  Did  they 
forget  that  these  ordinances  alone  convey  life  and  force  from  the  people 
to  the  instrument  1  And  finally,  did  they  forget  that  these  ordinances 
show  that  the  people  acted  solely  as  commonwealths'?  In  looking 
into  this  matter,  we  shall  see  why  the  expounders  have  suppressed 
these  majestic  utterances. 


168  FALLACIOUS  EXPOSITION. 

Did  not  the  People,  as  States,  ordain  ?  —  It  is  true  the  con- 
stitution contains  the  words  —  "We,  the  people  of  the  united  states,'* 
and  not  "  we,  the  people  of  the  state ; "  but  this  is  not  "  the  whole 
truth."  The  phrase  in  the  constitution,  and  the  one  in  the  ordinances 
ratifying  it,  both  refer  to  the  authority  which  established  the  constitu- 
tion, and  must  be  taken  together.  It  would  be  absurd  to  say  that  the 
fathers  wrote  in  the  pact,  that  it  should  be  established  "  between  the 
states  ratifying  "  by  convention ;  and  that  such  RATIFYINGS  "  SHALL 

BE    SUFFICIENT  FOB    THE    ESTABLISHMENT  of    this    Constitution  ; "     reCOg- 

nized  that  each  state  could  absolutely  ratify  or  reject ;  and  wrote  in 
each  ordinance  of  ratification  :  "  We,  the  people  of  the  state,  do 
hereby  assent  to,  and  ratify  this  constitution  ; "  and  yet,  that  they  in- 
tended to  provide  that  a  nation,  and  not  states,  should  ordain  and 
establish ! 

It  must  be  noted  here,  that  the  cause  of  the  constitution  is  the  sub- 
ject of  inquiry,  and  not  the  constitution  itself.  As  we  have  seen,  the 
proof  is  direct  and  positive  that  the  sole  cause  was  the  ordainers  of 
the  said  ordinances,  their  thirteen  separate  wills  being  expressed  in  the 
said  instruments,  and  becoming  conjoint  or  united  on  the  one  object 
—  the  constitution. 

The  preamble  itself  settles  the  question.  It  says  the  constitution 
was  made  by  "the  people  of  the  united  states"  "for  the  united 
states."  Itself,  then,  shows  the  pre-existent  states  that  the  people 
were.  The  said  "  people  "  had  always  acted  as  states.  They  were 
organized  and  capable  of  acting  only  as  such.  All  history  shows  that 
they  acted  separately  —  each  with  her  own  will  —  in  federalizing  them- 
selves. 

Besides,  that  this  seems  self-evident,  Part  II.  hereof  gives  over- 
whelming and  conclusive  proof. 

The  Ordaining  Instruments.  —  If  proof  of  the  people's  communi- 
cation of  authority  to  the  federal  compact,  law,  and  constitution  were 
required,  the  instrument  by  itself  would  not  serve.  The  only  expres- 
sion the  people  ever  made  on  the  said  constitution  was  in  the  thirteen 
several  instruments  alluded  to,  each  of  which  is  nearly  like  the  follow- 
ing, which  was  passed,  after  full  and  solemn  debate,  in  the  convention 
of  Pennsylvania,  by  a  vote  of  46  to  23  :  "  We,  the  delegates  of  the 
people  of  the  commonwealth  of  Pennsylvania  ...  do,  in  the  name 
and  by  the  authority  of  the  same  people,  assent  to  and  ratify  the  fore- 
going constitution  for  the  united  states  of  America.  Done  in  conven- 
tion .  .  .  12th  December,  1787."  [For  all  the  instruments  see 
I.  Ell.  Deb.  319-337.] 

The  first  of  these  ordinances  was  passed  by  Delaware,  December  7, 
1787 ;  two  other  states  acted  in  the  same  month  ;  two  in  January,  1788  ; 


WHO  MAKES  "SUPREME  LAW."  169 

one  in  each  of  the  months  of  February,  April,  and  May ;  New  Hamp- 
shire, the  ninth  and  complemental  state,  and  Virginia,  in  June  ;  one  in 
July  of  the  same  year  ;  one  in  November,  1 789  ;  one  in  May,  1 790  ;  and 
Vermont,  the  fourteenth  state  to  ratify,  in  January,  1791.  It  is 
hardly  necessary,  to  say  that  each  state  acted  of  her  own  motion,  in 
her  own  time,  at  her  own  capital,  and  through  her  own  conven- 
tion, with  absolute  power  to  ratify  or  reject.  Said  Chief  Justice 
McKean  in  the  Pennsylvania  convention  :  "  The  power  of  this  con- 
vention is  derived  from  the  people  of  Pennsylvania,  .  .  .  for  the  sole 
purpose  of  ratifying  the  constitution,  ...  or  of  rejecting  it."  [II.  Ell. 
Deb.  529.]  This  was  the  view  of  the  advocates  in  all  the  states. 
The  convention  was  called  by  the  state,  elected  by  the  state,  to 
represent  the  state  ;  and  was  to  ratify  or  reject  the  federal  plan  abso- 
lutely. There  was  no  interference,  or  even  hint  from  any  other  state 
or  states,  or  any  nation.  The  association  thus  formed  was  properly 
considered  to  be  a  "union  of  states,"  as  the  constitution  phrases  it, 
and  was  styled  "  the  united  states !  " 

The  Compact  required  the  States  to  ordain.  —  " Ratification" 
by  "the  states,"  was  to  be  "  sufficient  for  the  establishment  of  the  con- 
stitution, between  the  states,  so  [i.  e.  by  conventions]  ratifying  the 
same  : "  —  these  are  the  very  words  of  the  compact.  The  conclusive- 
ness  of  this  language  of  Article  VII.,  is  hereinbefore  noted  [p.  154]. 
It  is  absolute  proof  that  the  states,  as  such,  were  to  ordain  the  constitu- 
tion ;  for  it  shows,  1st.  That  "ratification"  is  to  effect  the  "estab- 
lishment." 2d.  That  states  are  to  do  the  "  ratification ; "  and  3d. 
That,  therefore,  the  constitution  is  to  be  established  by  and  "  between 
the  states  so  ratifying  the  same."  There  is  not  in  the  constitution, 
or  in  contemporaneous  history,  any  hint  of  any  people  ratifying,  except 
commonwealths  of  people,  i.  e.  the  states.  And,  as  if  to  make  denial 
impossible,  the  states  are  named  in  the  very  first  article  of  the  consti- 
tution, as  pre-existent  historical  and  geographical  bodies,  and  are  recog- 
nized and  provided  for,  throughout  the  instrument,  as  the  sources  of 
authority ;  and  there  is  no  sign  that  they  were  in  any  respect  changed 
—  much  less  degraded  to  counties  or  provinces.  Nor  is  there  any 
hint  of  the  abatement  of  their  sovereignty.  On  the  contrary,  the  rec- 
ord proves  that  "  each  state  retained  its  sovereignty"  and  acted  in  such 
character  up  to  the  very  finishing  of  the  federal  system  [see  Article  II. 
of  the  first  federal  pact]  ;  and  that  the  fathers  themselves  contemplated 
the  federating  states  as  continuing  unchanged,  and  as  remaining,  in  the 
eye  of  public  law,  states  or  nations.  Article  III.,  §  2,  Amendment  XL, 
and  other  articles,  show  that  the  word  "  states,"  referring  to  Massachu- 
setts, New  York  and  Virginia,  means  the  technical  states  or  nations  of 
the  jus  gentium,  just  as  it  does  when  referring  to  France  or  Russia. 


170  FALLACIOUS  EXPOSITION. 

The  phrase  "  united  states  of  America  "  meant  just  what  the  phrase 
"  united  states  of  Europe  "  would  have  done  —  an  association  of  sove- 
reignties. "  The  united  states  of  America "  was  an  association  of 
republics,  or  of  communities,  which  possessed  respectively  the  absolute 
right  of  self-government  —  i.  e.  sovereignty. 

No  "  People,"  as  such,  were  to  ordain.  —  But  the  argument  is 
still  stronger ;  for  not  only  were  the  states  to  ratify,  and,  consequently, 
to  ordain  the  constitution,  through  their  respective  conventions,  but 
"the  people"  were  not  to  vote  or  decide  on  the  constitution  at  all, 
and  they  never  did  so  in  any  mode,  either  directly  or  indirectly.  On 
the  contrary,  they,  as  citizens  and  voters  of  states,  under  laws  of  the 
states,  elected  delegates,  who,  in  convention  assembled,  were,  in  behalf 
of  the  state  they  were  the  convention  of,  to  examine  and  discuss,  and 
then,  according  to  their  discretion,  ratify  or  reject  the  constitution. 
Each  state,  through  her  own  convention,  ratified.  The  constitution 
was  ordained  in  this  way,  or  never  at  all,  for  no  other  expression  of 
the  people's  will  on  it  was  ever  made.  May  we  not  venture,  then,  to 
call  the  ordaining  instruments  ordinances'?  Mr.  G.  T.  Curtis  thinks 
they  are  not  ordinances,  but  more  like  deeds  or  grants.  I  shall 
notice  the  point  hereafter. 

Is  not  the  reason  now  apparent  why  Story,  Everett,  Motley,  Curtis, 
and  others  ignore  or  suppress  the  action  of  the  states,  and  especially 
the  above  ordinances'?  and  why,  when  they  are  forced  to  notice  the 
latter,  they  garble  them,  as  they  will  presently  be  shown  to  have  done  ? 
If  they  admit  that  the  states  enacted  the  above  instruments,  and  that 
thus  alone  was  life  and  validity  given  to  the  constitution,  and  exist- 
ence and  authority  to  the  government,  they  admit  the  entire  incorrect- 
ness of  the  counter-statement,  which  all  of  them  have  repeatedly 
made ;  to  wit,  that  the  nation  ordained  the  constitution,  and  that,  as 
it  is  "  the  supreme  law  of  the  land,"  "  state  sovereignty  is  effectually 
controlled  "  by  it. 


CHAPTER   III. 

FALSE  EVIDENCE  OF  ESTABLISHMENT. 
INTERPKETATION  No.   2.  — THE  CONSTITUTION  NATIONAL. 

IF  one  of  the  expounders  be  asked  for  proof  of  the  "  establishment 
of  the  constitution,"  he  asks  in  return,  "  What  does  it  say  of 
itself]"  [Webster,]  and  immediately  answers  from  the  preamble: 
"  We,  the  people,  ...  do  ordain  and  establish,"  and  he  further  says 
this  means  "the  people  as  a  nation."  This  deception  necessitates 
various  others,  which  are  to  be  exposed  herein. 

Now,  it  is  of  vital  importance  that  the  people  should  understand 
the  source  of  constitutional  authority ;  or,  in  other  words,  who  it  was 
that  effected  "the  establishment  of  this  constitution,"  and  was  the 
source  of  its  existence  and  power.  There  must  be  some  precise  and 
conclusive  evidence  on  a  subject  of  such  paramount  importance.  And 
yet,  on  this  very  subject,  the  said  expounders  have  most  industriously, 
though  perhaps  unintentionally,  taught  false  ideas,  and  caused  con- 
fused notions  in  the  popular  mind.  If  they  had  really  desired,  in 
good  faith,  to  make  a  truthful  pictorial  impression,  they  should  have 
affixed  to  the  compact  the  names  of  the  states  and  their  ordaining 
words,  —  these  indicating  precisely  what  gave  life  to  it.  [See  Part 
II.,  Chapter  XIII.]  As  far  as  it  goes,  the  constitution  is  the  evidence 
of  whatever  system  was  established,  i.  e.  whether  it  was  federal  or 
national.  But  something  more  is  necessary.  It  would  be  pettifog- 
ging folly  to  offer  an  instrument  as  evidence  of  the  parties  to  it,  or 
of  the  extent  of  their  obligations,  which  lawyers  had,  under  instruc- 
tions, drawn  for  the  said  principals,  and  had  signed,  —  not  to  adopt,  but 
to  authenticate  and  recommend  as  their  plan,  —  but  which  the  prin- 
cipals had  never  signed  or  sanctioned.  Such  instrument  would  simply 
show  what  the  plan  was,  and  who  devised  and  recommended  it  for 
adoption,  but  not  bind  the  principals  contemplated.  Now,  how  is  the 
execution  and  binding  force  of  such  instrument  to  be  shown  1  Simply 
by  proving  the  acts  that  gave  it  existence  and  validity.  If  the  con- 
stitution were  not  of  the  class  of  political  facts,  of  which  the  courts 
take  cognizance  without  proof,  the  only  possible  evidence  of  its  being 
in  force  in  any  given  state,  would  be  that  state's  act  of  ratification. 


172  FALLACIOUS  EXPOSITION. 

Proving  this  would  be,  in  legal  effect,  like  proving,  by  the  party's 
signature  or  otherwise,  the  execution  of  any  other  instrument. 

The  new  System  "  done  "  only  by  States.  —  Now  we  prove  each 
ratifying  ordinance  as  an  absolute  fact.  We  equally  prove,  as  a  fact, 
that  each  was  "  done  "  by  and  for  a  state.  Hence,  as  no  other  source 
of  life  and  power  is  shown,  we  establish  it  as  a  fact  that  the  consti- 
tution was  " done,"  i.  e.  " ordained  and  established"  by  thirteen  states, 
as  their  frame  of  general  government,  and  as  "  the  supreme  law  of  the 
land."  This  precisely  accords  with  the  provision  of  Article  VII.,  that 
the  "ratifications"  of  "nine  states"  are  to  "be  sufficient  for  the 
establishment  of  this  constitution,  between  the  states  so  [i.  e.  by  con- 
ventions] ratifying  the  same."  No  "ratifying  "  or  " establishing " but 
that  of  states,  that  is,  communities  of  people,  could  have  been  con- 
templated. It  was  thus  that  the  "  deed  "  —  to  use  Daniel  Webster's 
phrase  —  was  to  become  "executed."  It  was  thus  that  the  thirteen 
"  moral  persons,"  called  states,  were  to  form  the  republic  of  republics 
—  "  the  united  states." 

It  is  absolutely  untrue  that  the  convention  of  1787  represented, 
and  acted  for,  a  nation,  in  "  making  a  distribution  "  of  the  said  nation's 
"powers  between  their  general  government  and  their  several  state 
governments  ; "  and  "  reserving  to  the  states  "  the  rights  and  powers  they 
were  thereafter  to  possess.  The  states  made  "  the  constitution  of  the 
united  states,"  created  the  government,  delegated  its  only  powers,  and 
reserved  all  not  delegated ;  and  necessarily  the  only  restrictions  upon 
states  are  their  voluntary  ones.  They  are  self-associated  bodies,  — 
"united  states." 

All  the  history  and  records  of  the  country,  without  the  exception 
of  a  line,  word,  or  syllable,  aid  in  proving  the  last  proposition,  while 
no  line,  word,  or  syllable  of  the  said  history  and  records  can  be  pro- 
duced to  prove  that  a  nation  established  our  constitution  of  general 
government ! 

INTERPRETATION   No.   3.  — JUDGE  STORY'S  NEW  ARTICLE. 

If  we  judge  from  what  the  expounders  have  added  to  the  con- 
stitution, their  "  construction  "  means  building  or  fabricating.  The 
ingenuity  of  the  above-named  commentator  has  given  us  a  most 
important  addition. 

When  on  the  17th  of  September,  1787,  the  deputies  of  the  Ameri- 
can states,  in  convention,  published  the  plan  for  "the  federal  govern- 
ment of  these  states,"  they  affixed  their  signatures,  by  states,  in  order 
to  authenticate  the  plan,  and  to  recommend  it.  Nobody  ever  ventured 
to  say,  in  so  many  words,  that  the  convention  ordained,  or  that  it  had 


FALSE  EVIDENCE  OF  ESTABLISHMENT.  173 

any  more  than  mere  advisory  authority ;  but  the  peculiar  circum- 
stances of  the  case  afforded  an  opening  for  perversion.  In  his  Com- 
mentaries, Volume  II.,  §  1856,  Judge  Story  says  :  "  And  here  closes 
our  review  of  the  constitution,  in  the  original  form  in  which  it  is 
framed  for,  and  adopted  by,  the  people  of  the  united  states.  The  con- 
cluding passage  of  it  is  :  '  Done  in  convention,  by  the  unanimous  con- 
sent of  all  the  states  present,  the  17th  day  of  September,  1787.'  .  .  . 
At  the  head  of  the  illustrious  men  who  framed  and  signed,  stands  the 
name  of  George  Washington."  This  is  a  sample  of  Judge  Story's  ex- 
position; and  the  phrase  I  have  italicized,  as  well  as  the  impression 
made,  is  entirely  without  foundation.  Nobody  —  not  even  Judge 
Story  —  could  prove  that  the  words  quoted  were  "the  concluding 
passage  of  the  constitution  !  "  [See  V.  Ell.  Deb.  536,  555,  564.] 

Sheep  follow  Bell- Wethers.  —  In  all  American  books  the  con- 
stitution is  invariably  published  as  "  Done  in  convention,  by  the  unan- 
imous consent  of  the  states  present ; "  and  the  names  of  the  deputies 
are  affixed.  It  is  published  thus  —  strange  to  say  —  in  the  book  of  Mr. 
A.  H.  Stephens.  The  people  are  thus  pictorially  impressed  with  the 
idea,  that  then,  there,  and  by  those  men,  the  constitution  was  "  done." 
[See  Part  II.,  Ch.  XIII.] 

Men  are  naturally  gregarious,  and  each  flock  must  have  a  bell- 
wether. When  a  man  like  Story  becomes  accepted  as  a  leader,  his 
grex  discipidorum  thenceforward  seem  to  think  they  need  but  follow 
and  swallow.  Many  pages  could  here  be  quoted  from  men  who  think, 
and  many  more  from  that  immense  class  who  mistakenly  think  they 
think,  to  show  a  very  general  adoption  of  the  above  false  idea  of  the 
origin  of  our  federal  system ;  for  example,  the  New  York  World  of  April 
8th,  1864,  said,  "  The  constitution  was  a  federal  compact,  done  in  con- 
vention by  the  unanimous  consent  of  the  states  present."  The  so-called 
Massachusetts  school,  generally,  pretend  to  regard  the  "  consent  "  re- 
ferred to,  as  the  basis  of  the  federal  constitution,  though  they  know 
the  function  of  the  convention  was  merely  to  make  a  plan ;  and  that 
the  real  and  only  consent,  and  vitalizing  force,  was  given  by  states, 
and  through  the  separate  conventions  of  these  bodies.  And  they  in- 
timate, rather  than  broadly  assert,  that  the  people  of  the  states,  by 
ratifying,  consented  to  take  place  and  rank,  as  fractional  parts  of  a 
nation,  much  as  companies,  by  order,  merge  themselves  in  a  regiment, 
or  divisions  in  an  army.  Indeed,  Daniel  Webster,  in  his  speech  of 
1833,  and  George  T.  Curtis,  in  his  letters  to  the  New  York  World,  in 
1867,  speak  of  this  very  consent,  as  the  forming  of  a  national  society  by 
social  compact.  Such  is  the  "  interpretation  "  of  the  "  school !  " 

The  Blind  leading  the  Blind.  —  This  seems  to  be  not  only  the 
view  of  Story,  Webster,  and  Curtis,  but  it  is  the  idea  of  Buchanan, 


174  FALLACIOUS  EXPOSITION. 

Lincoln,  Andrew  Johnson,  Reverdy  Johnson,  Robert  J.  Walker,  Geo. 
H.  Pendleton,  et  omne  genus,  as  well  as  of  all  those  "  black  spirits  and 
white,  red  spirits  and  gray,"  that  "  mingled  "  in  the  Philadelphia  con- 
vention of  1866.  To  show  how  these  able  and  generally  conservative 
men,  being  deluded  themselves,  mislead  the  people,  I  quote  the  follow- 
ing from  a  speech  of  the  last-named  —  who  is  one  of  the  most  dis- 
tinguished of  the  alumni  of  the  Massachusetts  school  —  at  Bangor, 
Maine,  in  1868  :  "  I  bow  myself  in  reverence  before  the  form  of 
government  which  has  bound  these  mighty  states  together,  and  which 
has  reconciled  their  different  and  discordant  interests  into  the  harmony 
of  one  people,  and  one  government.  The  men  of  1787  were  self-deny- 
ing men.  They  feared  consolidation  of  power.  They  put  behind  them 
all  the  allurements  of  imperial  pomp.  They  denied  themselves  the 
fascinations  of  a  strong  government.  They  contented  themselves  with 
the  simplicity  of  confederation.  They  committed  to  the  federal  gov- 
ernment inter-state  and  international  affairs.  All  the  rest,  they 
reserved  to  the  states  themselves.  Within  this  narrow  sphere,  tliey 
made  the  federal  government  supreme.  All  beyond  remained  to  the 
unimpaired  sovereignty  of  the  several  states."  The  italics  are  my 
own. 

These  are  substantially  the  views  of  the  most  of  the  conservative  men 
and  presses  of  the  Massachusetts  school.  Nay,  more,  there  is  hardly 
an  inharmonious  buzz  in  the  whole  hive.  The  "  public  convictions," 
caused  by  their  teachings,  seem  to  be  inveterate,  that  some  high 
authority,  other  than  the  states,  distributed  powers  to  the  general  and 
state  governments ;  giving  supremacy  to  the  former,  so  that  to  the 
extent  of  its  powers,  "  state  sovereignty  " —  to  use  Webster's  phrase  — 
"is  effectually  controlled."  All  this  is  not  only  sophistical,  but  untrue, 
and  so  fully  contradicted  by  our  history,  that  it  cannot  be  innocently 
repeated  by  one  who  is  not  ignorant  of  the  subject. 

INTERPRETATION  No.  4.  —  THE  STATES  NOT  NAMED. 

That  the  states  are  not  named  in  the  constitution  is  a  common 
assertion  hard  to  account  for  ;  though,  in  politics  and  war,  fictions  are 
often  better  for  temporary  use  than  facts  ;  and  in  1861,  Everett,  Motley, 
and  others  evidently  saw  that  the  "public  convictions"  needed 
strengthening  by  statements  not  strictly  historical. 

I  shall  simply  quote  the  gentlemen  named,  and  then  quote  the  con- 
stitution, leaving  the  reader  to  decide  between  them. 

Mr.  Everett  said  [see  I.  Rebellion  Record,  9]  "  That  instrument 
does  not  purport  to  be  a  compact,  but  a  constitution  of  government. 
It  appears  in  its  first  sentence,  not  to  have  been  entered  into  by  the 


FALSE  EVIDENCE   OF  ESTABLISHMENT.  175 

states,  but  to  have  been  ordained  and  established  by  the  people  of  the 
United  States,  for  '  themselves  and  their  posterity.'  The  states  are 
not  named  in  it ;  nearly  all  the  characteristic  powers  of  sovereignty 
are  expressly  granted  to  the  general  government,  and  expressly  pro- 
hibited to  the  states,"  etc. 

John  Lothrop  Motley,  since  Minister  to  England,  in  a  letter  to  the 
London  Times  in  18G1,  on  "the  cause  of  the  civil  war,"  [I.  Reb. 
Rec.  209]  said  :  "  It  was  not  a  compact.  Who  ever  heard  of  a  com- 
pact to  which  there  were  no  parties  ?  or  who  ever  heard  of  a  compact 
made  by  a  single  party  with  himself1?  Yet  the  name  of  no  state  is  men- 
tioned in  the  whole  document"  etc. 

Each  State  put  her  Name  in  the  Compact.  —  Federal  Consti- 
tution, Art.  I.,  §  2  —  "  Representatives  and  direct  taxes  shall  be 
apportioned  among  the  several  states.  .  .  .  The  number  of  representa- 
tives shall  not  exceed  one  for  every  30,000,  but  each  state  shall  have  at 
least  one  representative  ;  and  until  such  enumeration  shall  be  made, 
the  state  of  New  Hampshire  shall  be  entitled  to  choose  3,  Massachu- 
setts 8,  Rhode  Island  1,  Connecticut  5,  New  York  6,  New  Jersey  4, 
Pennsylvania  8,  Delaware  1,  Maryland  6,  Virginia  10,  North  Caro- 
lina 5,  South  Carolina  5,  and  Georgia  3.  When  vacancies  happen  in 
the  representation  from  any  state,  the  executive  authority  thereof  shall 
issue  writs  of  election  to  fill  such  vacancies." 

We  can  now  see  why  the  "  expounders  "  should  get  out  of  the  loose 
preamble  or  preface,  into  the  constitution  itself.  The  very  first  article 
convicts  them  of  two  cardinal  and  flagrant  mistakes.  1st.  That  the 
states  are  not  named  in  the  constitution.  2d.  That  the  members  of 
the  lower  house  of  the  congress  are  the  representatives  of  the  people 
at  large,  i.  e.  of  the  nation,  and  not  representatives  of  the  political 
bodies  called  states,  in  which  form  alone  "the  people"  existed,  and 
could  politically  act.  This  matter  will  be  discussed  elsewhere. 


CHAPTER  IV. 
SOME  SAMPLES  OF  "  SOPH1SMES." 

INTERPRETATION  No.  5.  —  THE  SUPREME-LAW  CLAUSE. 

THE  climax  of  all  the  Massachusetts  school's  arguments  of  "  in- 
terpretation," is,  that  "  This  constitution  shall  be  the  supreme 
law  of  the  land."  If  one  ask  —  whose  "constitution"  or  whose 
"  supreme  law  "  is  it  1  Who  made  it  1  Whose  "  land  "  is  referred  to  1 
Over  what  subjects  is  it  "  the  supreme  law  "  1  the  ready  answer  is 
another  segment  of  the  sophistical  circle,  viz.,  "  «  We,  the  people  '  - 
as  a  nation  —  '  do  ordain  and  establish  this  constitution.'  " 

It  is  obvious  that  all  "  the  people,"  at  the  time  of  forming  the  con- 
stitution, were  states.  The  association  continued  to  be  "  the  united 
states,"  as  it  had  been  under  the  previous  constitution.  "  The  peo- 
ple "  remained  "  the  people  of  the  united  states,"  the  instrument  of 
union,  "  the  constitution  of  the  united  states,"  and  the  general  gov- 
erning agency,  "  the  government  of  the  united  states."  These  are 
the  very  phrases  of  the  constitution.  They  plainly  mean  that 
"  the  people,"  "  the  constitution,'*  and  "  the  government,"  belong  to 
the  said  states,  —  "  the  united  [or  associated]  states." 

The  people  chose  to  be,  and  remain,  organized  as  states ;  and  they 
were  incapable  of  political  action  in  any  other  form.  Being  republics, 
sovereignty,  or  the  right  of  self-government,  necessarily  resided  in  each. 
As  Wilson,  of  Pennsylvania,  and  other  fathers,  explained  :  "  the  sove- 
reignty is  in  the  people  before  they  make  a  constitution,  and  remains 
in  them  after  it  is  made." 

As  republics,  they  intended  to  govern  —  not  be  governed.  Of  their 
constitutions,  or  frames  of  government,  the  federal  one  is  "  the  su- 
preme law  of  the  land."  It  is  the  "law"  (i.  e.  the  expression  of  the 
will)  of  the  conjoint  law-makers,  —  not  above  them,  but  above  their 
subjects,  and  their  agencies  of  government.  Their  constitution  can 
be  no  law  over  them,  for  as  to  them  it  has  no  sanction  or  means  of 
enforcement.  A  law  without  a  sanction  is  no  law. 

Many  politicians  seem  to  have  vague  notions  on  this  subject.  Hon. 
A.  H.  Stephens,  in  his  "War  between  the  States,"  p.  40,  says :  "The 


SOME  SAMPLES  OF  "  SOPHISMES."  177 

exercise  of  supreme  law-making  power,  even  over  the  authority  dele- 
gating it,  may  be  legitimate  so  long  as  the  delegated  power  is  unre- 
sumed."  Is  there  ever  such  an  "  exercise  "  1  Mr.  Stephens  ought  to 
explain,  with  illustrations. 

The  Fathers'  Idea  of  "  the  Supreme  Law."  —  The  plain  and  simple 
idea  of  the  fathers-  was  this  :  The  states,  being  constitutors  of  the 
constitution,  ordained  that  where  conflict  should  arise  between  this 
and  any  other  law  of  the  land,  this  should  be  supreme,  —  all  laws  be- 
ing expressions  of  their  wills;  federal  laws  being  made  by  their  joint 
will,  and  state  laws  by  their  several  wills. 

Said  HAMILTON  —  meeting  this  very  claim  of  Messrs.  Webster  and 
Story — then,  a  charge,  by  enemies,  of  danger  in  the  clause :  "  The  word 
*  supreme '  imports  no  more  than  this,  that  the  constitution  and  laws 
made  in  pursuance  thereof,  cannot  be  controlled  or  defeated  by  any 
other  law.  .  .  .  But  the  laws  of  congress  are  restricted  to  a  certain 
sphere,  and  when  they  depart  from  this  sphere,  they  are  no  longer 
supreme,  or  binding.  In  the  same  manner,  the  states  [he  meant  the 
state  governments]  have  certain  independent  powers,  in  which  their 
laws  are  supreme."  Again,  he  said  :  "The  laws  of  the  united  states 
are  supreme,  as  to  all  their  proper  constitutional  objects.  The  laws 
of  the  states  are  supreme  in.  the  same  way."  [II.  Ell.  Deb.  362.] 

Said  JUDGE  IREDELL,  in  the  North  Carolina  ratifying  convention, 
about  said  supreme  law :  "  What  is  the  meaning  of  this  1  .  .  .  It  is 
saying  no  more  than  that,  when  we  adopt  the  government,  we  will 
maintain  and  obey  it ;  in  the  same  manner,  as  if  the  constitution  of 
the  state  had  said,  that  when  a  law  is  passed  in  conformity  to  it,  we 
must  obey  that  law.  Would  this  be  objected  to  1  Then,  when  con- 
gress passes  a  law,  consistent  with  the  constitution,  it  is  to  be  binding 
on  the  people.  If  congress,  under  pretence  of  executing  one  power, 
should,  in  fact,  usurp  another,  they  will  violate  the  constitution." 
[IV.  Ibid.  178-9.] 

Said  WILLIAM  R.  DAVIE,  in  the  same  convention  :  "  Every  power 
ceded  by  it  must  be  executed.  ...  It  is  not  the  '  supreme  law '  in 
the  exercise  of  a  power  not  granted.  ...  To  vest  the  federal  govern- 
ment with  power  to  legislate,  and  then  deny  supremacy  in  the  laws, 
is  a  solecism  in  terms."  [Ibid.  182.] 

JUDGE  PARSONS,  afterwards  the  celebrated  chief  justice  of  Massa- 
chusetts, said  the  same  thing  in  substance,  in  the  ratifying  convention 
of  that  state  :  "an  act  of  usurpation  is  not  obligatory ;  it  is  not  laiv" 
[II.  Ell.  Deb.  94.] 

It  is  needless  to  quote  further,  for  these  were  the  opinions  of  all. 
The  truth  is,  the  supreme-law  clause  of  the  constitution  was  a  mere 
emphasis  of  a  fact  or  principle,  —  the  enunciation  of  a  truism.  Any 

12 


178  FALLACIOUS   EXPOSITION. 

and  every  law  is  supreme,  in  the  sense  intended,  when  there  is  no 
conflicting  law  above  it  —  even,  for  instance,  the  order  of  a  parent  to 
a  child,  or  a  master  to  a  servant.  Any  rule,  within  an  authorized 
sphere,  and  on  a  rightful  subject,  is  supreme,  from  the  decree  of  an 
autocrat  down  to  the  ordinance  of  a  town  council.  And,  in  the  very 
nature  of  things,  the  compact  of  the  states  overrides  their  home  and 
peculiar  laws,  even  without  the  phrase  I  speak  of ;  for  the  very  en- 
gagement of  the  parties,  to  which  their  faith  is  pledged,  is  that  no 
one  of  them  shall  nullify,  defeat,  or  even  interfere  with,  what  all,  for 
the  common  good,  have  agreed  on.  If  the  nations  of  Europe  were 
to  federalize  themselves  to-day,  each  would  proceed  to-morrow  to  make 
every  home  and  local  law  conform  to  the  treaty.  The  idea  is  as  old 
as  international  agreements,  that  a  state's  compact  with  other  states 
is  "  the  supreme  law  of  the  land  "  in  her  territory  ;  and  all  her  courts, 
upon  finding  any  other  law  conflicting  with  it,  would  necessarily  and 
dutifully  decide  it  to  be  "supreme." 

Moreover,  it  is  absurd  to  suppose  the  commonwealths  created  a 
government  and  delegated  to  it  authority  and  means  to  destroy  them. 
Nay,  more,  the  fathers  unanimously  excluded  from  the  constitution 
all  power  and  means  of  contending  against  the  will  of  a  state,  saying 
that  the  coercion  of  a  state  was  "  visionary  and  fallacious"  [Madison], 
"one  of  the  maddest  projects  ever  devised"  [Hamilton],  and  equiva- 
lent to  "  war  "  [Randolph,  Ellsworth,  and  others],  and  all  agreed  that 
it  was  inconsistent  with  the  voluntary  union  of  states  which  was  aimed 
at  by  all :  and  finally,  if  this  "  supreme  law  of  the  land  "  is  over  the 
states,  individually  and  collectively,  why  did  Messrs.  Seward,  Greeley, 
Everett,  and  others,  admit  the  want  of  power,  in  the  general  govern- 
ment, to  coerce  the  states  1  and  why  are  so  many  misstatements  and 
sophistries  needed  to  strengthen  the  "public  convictions,"  and  give 
ease  to  the  public  conscience  on  this  subject  ? 

The  Expounders  prove  too  much.  —  If  the  constitution  is  a  law 
over  one  state,  it  is  over  all,  —  "  the  united  states,"  even,  being  sub- 
ordinate ;  and  Lincoln  was  right  in  his  expression  that  "  the  states 
have  no  status  or  rights  "  except  those  "  reserved  to  them  by  the  nation, 
in  its  constitution."  In  other  words,  the  stupid  states  have  put  their 
"supreme  law"  over,  and  thereby  subjugated,  themselves  :  and  given 
their  own  citizens  and  chosen  agents  full  power  to  coerce  their  obe- 
dience. 

INTERPRET ATON  No.  6.  —  PARTLY  FEDERAL  AND  PARTLY  NATIONAL. 

In  Article  39  of  the  Federalist  are  to  be  found  several  little  sen- 
tences, which  have  done  much  detached  duty  in  the  great  contest  — 


SOME   SAMPLES   OF  "SOPHISMES."  179 

supposed  to  be  a  logical  one  —  as  to  whether  the  constitution  is  a  com- 
pact or  not.  The  expounders  use  them  to  prove  that  our  general 
polity  is  partly  federal  and  partly  national  in  character,  —  the  national 
part  predominating  ;  so  that,  practically,  we  are  a  great  political  unit, 
made  up  of  municipal  fractions,  called  states  but  really  counties, 
and  that  "  so  far  as  the  constitution  goes,  so  far  state  sovereignty 
is  effectually  controlled."  [Webster.]  One  of  these  sentences  is  the 
heading  hereof. 

None  of  "  the  writers  of  the  Federalist"  or  other  fathers  hinted  at 
any  nation  acting  in  the  premises,  or  at  the  states  being  reduced  to 
provinces  or  counties.  In  the  article  alluded  to,  Mr.  Madison  said, 
"  The  act  establishing  the  constitution  will  not  be  a  national  but  a 
federal  act."  "  Each  state  "  is  to  ratify,  continued  he,  "  as  a  sovereign 
body,"  and  is  "  only  to  be  bound  by  its  own  voluntary  act."  "  In  this 
relation,  then,  it  will  be  &  federal  and  not  a  national  constitution."  He 
then  shows  how,  in  their  compact,  the  sovereigns,  as  to  the  certain 
matters  provided  for,  treat  their  aggregate  subjects  as  a  nation  ;  and 
concludes  that  "  the  proposed  constitution  "  is  "  neither  a  national 
nor  a  federal  one,  but  a  composition  of  both,"  i.  e.  it  is  federal  in  the 
establishment  of  it,  but,  pro  tanto,  national  in  operation. 

Mr.  Madison's  obvious  meaning  was,  that  the  states,  as  separate 
parties,  each  acting  with  her  own  will,  compacted  to  establish  the 
constitution,  and  agreed  therein  to  govern  their  respective  subjects 
together,  as  to  the  general  matters  the  constitution  was  made  for ; 
thus  treating  them  as  if  a  nation.  And  the  true  idea  is,  that  so  far 
as  the  federal  compact  goes,  the  people  are  quasi  a  nation  —  not  in 
political  existence,  organism,  or  power,  but  as  subjects  of  government. 
It  is  also  true  that  the  constitutors  and  components  of  that  nation 
are  the  states,  and  that  the  people  of  that  nation  are  entirely,  exclu- 
sively, "  and  absolutely "  the  "  citizens  of  different  states,"  and,  of 
course,  the  subjects  thereof. 

Articles  III.,  §  2 ;  IV.,  §  2  ;  and  the  llth  Amendment,  show  that 
there  were  no  citizens  of  a  nation  ;  and  Article  I.  names  the  states  as 
pre-existent  bodies,  while  the  whole  instrument  contains  no  hint  of 
their  change  in  name  (either  proper  or  technical),  geography,  organ- 
ism, or  political  authority ;  but,  throughout  its  whole  extent,  recog- 
nizes and  provides  for  them  as  the  parties  to  it,  the  actors  under 
it,  and  the  sources  of  all  federal  elections  and  federal  power.  In 
short,  the  phrase  —  "  the  united  states,"  makes  and  ends  the  whole 
argument. 

The  Senate  Federal  —  the  House  National.  —  The  mixed  char- 
acter is  pretendedly  inferred  from  another  source.  In  illustrating  it, 
the  expounders  allege  that  the  senators  are  to  represent  states,  but 


180  FALLACIOUS  EXPOSITION. 

that  "the  house  of  representatives  will  derive  its  power  from  the 
people  of  America."  "  The  people  of  America  "  are,  of  course,  the 
nation,  —  the  states  being  the  provinces.  The  very  number  (39)  in 
which  the  above  phrase  is  used,  refutes  the  perverters  a  thousand 
times  over.  But  let  us  ask  the  constitution  itself,  whose  representa- 
tives they  are  1  who  they  are  elected  by  ]  and  whose  power  and  means 
they  officially  use  1 

1.  Article  I.,  §  2,  says  the  representatives  are  to  be  "chosen  every 
second  year  by  the  people  of  the  several  states" 

2.  "  The  electors  \i.  e.  the  voters]  in  each  state "  are  to  be  such  as 
the  state  authorizes.     [Ibid.] 

3.  Representatives  "  shall  be  apportioned  among  the  several  states " 
according  to  numbers.     [Ibid.] 

4.  "  Each  state  shall  have  at  least  one  representative"     [Ibid.] 

5.  The  same  article  and  section  names  the  states,  and  fixes  the 
number  each  state  shall  "  be  entitled  to  choose  "  till  the  apportionment. 

6.  The  same  article  provides  for  the  governor  issuing  writs  of  election 
for  filling  vacancies  in  "  the  representation  from  any  state." 

Note  also  the  following,  in  Article  II.  §  1  :  "  Each  state  shall  appoint, 
in  such  manner  as  the  legislature  thereof  may  direct,  a  number  of 
electors  equal  to  the  whole  number  of  senators  and  representatives  to 
which  the  state  may  be  entitled  in  the  congress." 

We  find,  then,  that  "  each  STATE  shall  have  "  these  agents,  and  each 
''shall  be  entitled  to  choose  "  them.  Voting  powers  and  eligibility  to 
office  are  fixed,  of  original  right,  by  the  state,  and  are  confined  to  her 
own  citizens  and  members.  It  is  obviously  not  the  people  at  large, 
but  societies  of  people,  that  are  to  be  represented ;  and  it  is  equally 
obvious  that  republics,  for  federal  self-government,  are  to  send  repre- 
sentatives, as  well  as  senators,  to  a  congress  of  themselves. 

The  point  of  distinction  between  the  consolidated  and  the  federal 
form  is  the  individuality  of  states,  and  their  complete  independence 
of  will,  which  we  shall  always  find  to  have  been  carefully  pre- 
served. 

How  purely  mythical,  then,  is  the  national  idea  commonly  taught ! 
Not  a  line  in  all  American  history  or  records  agrees  with  it.  Every- 
thing shows  the  polity  to  be  a  federation,  i.  e.  "  the  united  states." 
The  instrument  evidencing  it  is  properly  called  the  federal  constitu- 
tion. So  far,  however,  as  the  states  have  willed  that  it  should  be,  it 
is  national  in  operation  upon  their  citizens,  and  it  is  national  to  the 
outside  world.  Madison,  Hamilton,  and  all  the  fathers  said  the  con- 
stitution did  not  attempt  to  consolidate  the  states,  but  contemplated 
them  as  absolutely  sovereign  commonwealths,  in  league  for  self-preser- 
vation and  self-government.  [See  Part  I.,  Ch.  VII.] 


SOME  SAMPLES  OF  "  SOPHISMES."  181 


INTERPRETATION  No.  7.  —  "  RESERVED  TO." 

The  expounders  assume  — 1.  the  nation  ;  2.  the  supreme-law  dogma ; 
and  3.  the  subjection  of  the  states  to  this  supreme  law ;  and  pick 
little  crumbs  of  comfort,  if  not  support,  out  of  detached  phrases,  with 
which  their  theory  is  consistent,  though  it  is  inconsistent  with  the 
constitution  and  every  fact  of  history,  and  especially  with  truth  and 
justice ! 

The  states  —  said  Lincoln  —  have  no  " status"  or  " power,"  but 
what  is  "RESERVED  TO  THEM,"  in  the  constitution,  by  the  nation — in 
other  words,  no  rights  but  those  the  nation  has  allotted  to  them  in  its 
supreme  law.  Amendment  X.  reads  :  "  The  powers  not  delegated  to 
the  united  states  by  the  constitution,  .  .  .  are  reserved  to  the  states 
respectively,  or  to  the  people  : "  thus  showing  that  all  the  powers 
granted  or  vested  by  the  constitution  are  delegated  ;  and  that  all  which 
the  delegators  did  not  put  in  the  constitution,  they  must  have  KEPT 
OUT.  This  is  the  necessary  meaning  of  "  reserved "  in  the  10th 
amendment,  and  "  retained  "  in  the  9th. 

Why  was  the  phrase  "  reserved  to,"  used  ]  I  shall  try  to  show  in 
the  proper  place,  that,  (as  Livingston,  Hamilton,  Madison,  Marshall, 
and  others  viewed  it,)  the  people,  as  commonwealths,  were  respectively 
distributing  their  powers  between  their  home  and  their  federal  gov- 
ernments; and  in  "reserving"  or  "retaining"  powers  and  rights, 
they  had  to  reserve  to  the  state  governments,  where  many  already  were, 
or  to  themselves,  who  owned  all  the  residue.  It  must  be  kept  in  mind 
that  in  the  common  parlance  of  those  days,  "  state  "  was  convertible 
with  "state-government,"  as  well  as  with  the  commonwealth  of 
people. 

If  it  be  kept  in  mind  that  the  states  are  speaking ;  that  they  are 
delegating,  and  they  reserving ;  that  there  are,  politically,  no  other 
people  than  states,  and  no  other  states  than  people,  we  shall  see  clearly 
that  the  phrase  "  to  the  states,  or  to  the  people  "  meant  to  the  state 
governments,  or  to  the  states.  Of  the  correctness  of  this  view,  New 
York  and  other  states  give  conclusive  proof.  Her  language  is  "  Every 
power  .  .  .  which  is  not  .  .  .  delegated  to  the  .  .  .  departments  of 
the  government  .  .  .  remains  to  the  people  of  the  several  states, 
or  to  their  respective  state  governments,  to  whom  they  may  have 
granted  the  same."  [See  also  App.  D.  No.  2,  and  illustration,  p.  310, 
infra."] 


CHAPTER  V. 

GARBLINGS. 
INTERPRETATION  No.  8.  —  GARBLING  THE  RATIFICATIONS. 

IN  his  "  Commentaries "  [Vol.  I.,  §  356]  Judge  Story  says  :  "  It 
was,  nevertheless,  in  the  solemn  instruments  of  ratification  by 
the  people  of  the  several  states,  assented  to,  as  a  constitution.  The 
language  of  these  instruments  uniformly  is,  '  we,  &c.,  do  assent  to  and 
ratify  the  said  constitution'  "  The  reader  will  please  note  the  "  &c." 
Judge  Story  further  says,  that  the  language  of  the  conventions  of 
Massachusetts  and  New  Hampshire  is  peculiar,  and  he  professes  to 
quote  it,  as  follows  :  "  The  convention,  &c.,  acknowledging,  with  grate- 
ful hearts,  the  goodness  of  the  Supreme  Ruler  of  the  universe,  in  afford- 
ing to  the  people  of  the  united  states,  in  the  course  of  His  Providence, 
an  opportunity,  deliberately  and  peaceably,  without  force  or  surprise, 
of  entering  into  an  explicit  and  solemn  compact  with  each  other,  by 
assenting  to  and  ratifying  a  new  constitution,  &c.,  do  assent  to,  and 
ratify,  the  said  constitution."  Please  note,  in  this  extract,  two  cases 
of  "  &c.  ;  "  also  Judge  Story's  italics.  Daniel  Webster,  in  his  speech 
of  1833,  [III.  Webster's  Works  476,]  garbles  this  ratification  as  Judge 
Story  does,  so  that  the  present  expose  applies  equally  to  him.  It  is 
the  opinion  of  some,  however,  that  Mr.  Webster  was  often  misled,  as 
to  facts,  by  the  investigators  he  confided  in. 

And  we  find  the  same  mysterious  and  suspicious  "  &c.,"  in  all  the 
quotations  the  writers  of  the  school  make  from  the  ratifications.  For 
fuller  exposure,  it  is  well  to  bring  several  to  view.  E.  D.  Mansfield, 
in  teaching  political  truth  to  the  young  people  of  our  country,  says, 
on  page  171  of  his  "  Political  Grammar  :"  "  The  language  of  the  rati- 
fications is  remarkably  uniforqj  and  remarkably  explicit,  as  to  the 
source  whence  the  constitution  receives  its  authority  and  force.  All 
the  ratifications  commence,  '  We,  the  delegates  of  the  people  thereof,' 
and  all  terminate  by  making  their  ratifications  in  the  name  of  their 
constituents,  the  people."  This  is  evidently  a  studied  statement.  One 
or  two  more  will  suffice  out  of  many  I  have  before  me.  During 
the  war,  an  enterprising  American  in  England,  under  the  auspices  of 


GARBLINGS.  183 

the  United  States  Legation,  got  up  a  "  Bacon's  Guide  to  American 
Politics,"  for  the  purpose  of  preventing  the  English  people  and  gov- 
ernment from  sympathizing  with  and  favoring  the  South,  in  which 
"  Guide  "  the  same  deception  is  practised,  as  follows  :  "  All  the  ratifi- 
cations commence  with  '  We,  the  people,'  and  all  terminate  by  making 
the  ratifications  '  in  the  name  of  our  constituents,  the  people.'  Thus 
the  states,  in  their  official  capacity,  proposed  the  constitution,  .  .  . 
but  it  receives  its  sanction  and  validity  from  the  whole  people,  in  their 
sovereign  capacity." 

And  Mr.  George  Ticknor  Curtis,  in  a  letter  to  Edward  Everett, 
dated  June  3,  1861,  wrote  that  "the  duly  authorized  delegates  of  the 
people  of  South  Carolina  executed  an  instrument,  under  seal,  declar- 
ing that  they,  '  in  the  name  and  behalf '  of  that  people,  assent  to  and 
ratify  the  said  constitution." 

Now,  what  does  "&c.,"  or  the  ellipsis,  mean,  in  all  these  quotations'? 
or,  rather,  what  does  it  hide  ?  Simply  this  :  it  conceals  words  which 
completely  refute  the  assertions  made,  and  conclusively  prove  that  the 
people,  as  independent  states,  —  organized  and  acting  as  such,  —  and 
not  the  people  as  a  nation,  are  the  parties  to  the  federal  constitution, 
and  the  sole  sources  of  its  authority,  and  that  this  instrument  evi- 
dences a  federation  of  sovereignties.  And,  if  the  above  writers  did 
not  think  so,  why  did  they  invariably  suppress  the  pith  of  these 
ordinances  ?  Indeed,  they  could  not  have  believed  otherwise. 

The  true  Versions.  —  Referring  generally  to  the  acts  of  ratifica- 
tion, all  to  be  found  in  I.  Elliott's  Debates,  319-337,  I  will  copy  the 
ordaining  words  of  two  or  three  of  them,  so  that  the  reader  can  see, 
in  juxtaposition,  the  garbled  and  the  true  expressions.  Here  are  the 
suppressed  words,  and  the  very  pith,  of  the  ratification  of  Judge  Story's 
own  state  :  "  The  convention  "  [here  follow  the  introductory  words 
above  quoted,  which  the  reader  must  recur  to,  in  order  fully  to  appre- 
ciate the  matter]  do,  in  the  "  name  and  in  behalf  of  the  people  of  the 
commonwealth  of  Massachusetts,  assent  to  and  ratify  the  constitution 
for  the  United  States  of  America."  The  ratifying  act  passed  by  a 
vote  of  187  to  168. 

Here  is  the  pith  of  the  act  of  New  Jersey  :  "  In  convention  of  the 
state  of  New  Jersey,  ...  we,  the  delegates  of  the  state  of  New  Jer- 
sey, ...  do  hereby,  for  and  on  the  behalf  of  the  people  of  the  said 
state  of  New  Jersey,  agree  to,  ratify,  and  confirm  the  same,  and  every 
part  thereof."  Passed  by  unanimous  vote. 

Here  is  the  substantial  portion  of  Virginia's  ordinance  :  "  We,  the 
delegates  of  the  people  of  Virginia,  .  .  .  now  met  in  convention,  .  .  . 
in  the  name  and  behalf  of  the  people  of  Virginia,  do,  by  these  presents, 
assent  to,  and  ratify  the  constitution  recommended,  .  .  .  hereby  an- 


184  FALLACIOUS  EXPOSITION. 

nouncing  to  all  whom  it  may  concern,  that  the  said  constitution  is 
binding  on  the  said  people."     Vote,  89  to  79. 

Here  are  the  words  of  Georgia :  " .  .  .  We,  the  delegates  of  the 
people  of  the  state  of  Georgia,  in  convention  met,  ...  do,  in  virtue 
of  the  power  and  authority  to  us  given  by  the  people  of  the  said  state 
for  that  purpose,  for  and  in  behalf  of  ourselves  and  our  constituents, 
fully  and  entirely  assent  to,  ratify,  and  adopt  the  said  constitution." 
Vote,  unanimous.  All  the  ordinances  are  in  substance  the  same ;  and 
all  contain  the  word  "  ratify,"  referring  to  the  act  of  the  political 
body,  —  the  state. 

What  was  the  Motive  ?  —  Now,  the  purpose  of  these  garblings  is 
obvious.  If  the  perverters  had  written  and  printed  the  suppressed 
passages,  they  would  have  destroyed  their  theory,  for  the  words  sup- 
pressed show  the  states  to  be  the  only  possible  creators  and  delegators. 
But,  while  thus  engaged,  they  often  unwittingly  recognize  these  acts 
of  ratification,  as  conveying  from  the  organized  people,  i.  e.  the  com- 
monwealths, the  entire  life  and  strength  of  the  constitution.  For 
example,  see  the  above  words  of  Judge  Story :  "  The  people  of  the 
several  states  assented  to  '•'  the  said  constitution,  by  "  solemn  instru- 
ments of  ratification."  This  admits  all  I  claim,  for  no  one  pretends 
that  the  original  " establishment"  i.  e.  the  vitality  and  validity  of  the 
pact  or  constitution,  could  come  from  any  other  source  than  these  acts 
of  nine  or  more  states,  spoken  through  nine  or  more  conventions.  An 
instrument  prepared  by  the  deputies  of  thirteen  such  parties,  which 
the  said  parties  consecutively  and  independently  adopt,  and  which 
contains  their  provisions  for  the  general  government  of  their  people, 
must  be  a  federalizing  instrument,  whether  sanctioned  by  signature, 
seal,  proxy,  delegation,  convention,  commissioners,  ambassadors,  or  any 
other  mode  and  means  of  expressing  will ;  and  the  product  of  such 
instrument  is  necessarily  a  federation,  i.  e.  a  union  of  states.  How 
can  any  intelligent  man,  in  the  face  of  these  facts,  innocently  assert 
that  our  general  polity  is  an  association  of  people  as  a  nation,  instead 
of  a  society  of  commonwealths  —  a  republic  of  republics  —  "  the  united 
states  "  1  What  chance  have  facts,  compacts,  reason,  argument,  and 
the  sacred  faith  of  the  fathers,  against  the  so-called  Massachusetts 
school,  with  its  command  of  the  press ;  and  where  its  disciples  con- 
stantly speak  and  write  such  errors  as  are  in  the  following  extract 
from  Motley's  letter  to  the  London  Times,  heretofore  quoted  from  : 
"...  The  name  of  no  state  is  mentioned  in  the  whole  document ; 
the  states  themselves  are  only  mentioned  to  receive  commands  or  pro- 
hibitions, and  the  people  of  the  united  states  is  the  single  party  by  whom 
alone  the  instrument  is  executed.  The  constitution  was  not  drawn  up 
by  the  states,  it  was  not  promulgated  in  the  name  of  the  states,  it  was 


GARBLINGS.  185 

not  ratified  by  the  states.  The  states  never  acceded  to  it,  and  possess 
no  power  to  secede  from  it.  It  was  ordained  and  established  over 
the  states  by  a  power  superior  to  the  states,  —  by  the  people  of  the 
whole  land,  in  their  aggregate  capacity,  acting  through  conventions  of 
delegates,  expressly  chosen  for  the  purpose,  within  each  state,  etc." 
[I.  Keb.  Rec.  211.]  Every  sentence  of  the  above  is  directly  and  posi- 
tively contradicted  by  the  history  and  records  of  the  country,  as  here- 
tofore shown,  and  as  we  shall  constantly  see. 

INTERPRETATION  No.   9.  — GARBLING  THE  FEDERALIST. 

Many  instances  of  this  ingenuity  on  the  part  of  some  of  the  later 
"  best  minds  of  Massachusetts  "  could  be  given,  but  it  is  presumed 
the  following  will  suffice.  An  American  politician  considers  himself 
quite  fortunate,  if  he  can  quote  an  apposite  and  forcible  passage  of 
the  Federalist,  to  prove  his  contention.  In  quoting  to  prove  his, 
Judge  Story  says  :  "  It  is  truly  remarked  by  the  Federalist  (Article 
39),  that  the  constitution  was  the  result,  neither  from  a  decision  of  the 
majority  of  the  people  of  the  union,  nor  from  that  of  a  majority  of  the 
states.  It  resulted  from  the  unanimous  assent  of  the  several  states 
that  are  parties,  differing  no  otherwise  from  their  ordinary  assent  than 
its  being  expressed,  not  by  the  legislative  authority,  but  by  that  of  the 
people  themselves."  He  professes  to  give  the  substance,  but  abstracts 
what  is  merely  prefatory  to  the  gist  of  the  passage,  and  leaves  off,  so 
as  to  convey  the  impression  of  a  national  constituency,  or  the  "  we- 
the-people  "  idea,  to  prove  which  is  the  great  end  of  his  argument. 
Here  is  what  next  follows  :  "  Were  the  people  regarded,  in  this  trans- 
ition, as  forming  one  nation,  the  will  of  the  majority  of  the  whole 
people  of  the  united  states,  would  bind  the  minority.  ...  Each  state, 
in  ratifying  the  constitution,  is  considered  as  a  sovereign  body,  inde- 
pendent of  all  others,  and  only  to  be  bound  by  its  own  voluntary  act. 
In  this  relation,  the  new  constitution  will,  if  established,  be  a  federal, 
and  not  a  national,  constitution."  This  is  decisive  on  the  very  point 
Judge  Story  was  discussing,  and  it  destroys  him  completely ;  and  he 
recognized  this  by  suppressing  the  passage  confuting  him,  while  quoting 
its  antecedent,  which  seemed  to  support  him.  And  the  careful  reader 
will  find  that  all  of  Judge  Story's  arguments  and  multitudinous  cita- 
tions, on  the  great  subject  of  "the  nature  of  the  constitution,"  are  so 
delusive,  that  full  examination  is  necessary. 

An  Effort  of  Daniel  Webster  in  this  Line.  —  Mr.  Webster  also 
culled  expressions  and  facts  to  suit  his  purpose,  and  failed  in  accuracy 
as  to  contexts  and  historical  explanations.  An  instance  like  the  above 
is  the  following,  from  his  speech  of  1833.  He  asserts  that  the 


186  FALLACIOUS  EXPOSITION. 

writers  of  the  Federalist  declare  that  "  the  fabric  of  American  em- 
pire ought  to  rest  on  the  solid  basis  of  THE  CONSENT  OP  THE  PEOPLE  " 
[the  small  capitals  are  his] ;  and  he  uses  this  expression  of  the  said 
writers,  and  the  immediate  context,  to  refute  the  idea  of  pact,  and  to 
show  that  a  nation  was  formed.  He  did  not  seem  to  know  that  this 
expression,  found  in  Number  22,  refers  to  the  first  federation  being 
made  by  delegative,  instead  of  original,  power;  and  simply  meant 
that  the  people  of  the  states,  and  not  their  legislatures,  were  to  ordain 
and  establish  the  new  pact.  He  did  not  seem  to  reflect  that,  not  only 
were  the  people  of  the  commonwealths  the  only  people,  but  that,  as 
has  been  shown,  they  could  politically  act  only  as  states ;  and  that 
their  several  absolutely  independent  acts  made  them  "  united  states," 
as  they  agreed  to  call  themselves. 

He  then  goes  on  to  declare,  that  "  the  powers  conferred  on  the  new 
government,  were  perfectly  well  understood  to  be  conferred,  not  by  any 
state,  or  the  people  of  any  state,  but  by  the  people  of  the  united 
states."  And,  finally,  he  improperly  quotes  the  ratifications  of  Vir- 
ginia, Massachusetts,  and  New  Hampshire  to  prove  his  view;  and 
then  proceeds  to  say :  "  Indeed,  sir,  if  we  look  to  all  contemporary 
history,  —  to  the  numbers  of  the  Federalist,  to  the  debates  in  con- 
ventions, to  the  publications  of  friends  and  foes,  — they  all  agree  that 
a  change  had  been  made  from  a  confederacy  of  states  to  a  different  sys- 
tem." Now,  all  these  statements  are  unfounded,  and  the  authorities 
he  refers  to,  flatly  contradict  him.  For  instance,  "  the  writers  of  the 
Federalist,"  instead  of  calling  the  system  a  nation  or  state,  in  any 
technical  sense,  repeatedly  characterize  it  as  a  "  confederacy."  [See 
again  Part  I.,  Chap.  VII.]  Instead  of  saying  the  general  government 
rests  on  the  "  basis  of  the  consent  of  the  people  "  as  a  nation,  they 
say  that  "  each  state  ratified  "  "  as  a  sovereign  body,"  and  is  only 
"  bound  by  its  own  voluntary  act."  [Number  39.]  Instead  of  saying 
the  powers  are  conferred  on  the  new  government  by  the  people  of 
the  united  states  as  a  nation,  they  say  "  the  states  "  alone  "  delegate  " 
them.  Instead  of  saying  the  people  compact  to  form  a  nation,  they 
say  "thirteen  independent  states  "  are  "the  parties  to  the  compact," 
forming  "  the  confederacy."  [Number  85.]  1  Finally,  in  direct  oppo- 
sition to  all  that  this  expounder  asserts,  they  say  "  the  states  are 
regarded  as  distinct  and  independent  sovereigns  ...  by  the  consti- 
tution proposed."  [Number  40.] 

With  but  slight  investigation,  the  expounders  could  have  found 

1  This  very  article,  written  by  Hamilton,  contains  the  expression,  "A  nation  without 
a  national  government  is  an  awful  spectacle."  This,  like  the  "  we-the-people  "  sen- 
tence and  others,  long  did  much  "  detached  service  "  in  forming  the  aforesaid  bellicose 
"  public  convictions." 


GARBLINGS.  187 

numerous  proofs  like  these,  covering  and  deciding  the  very  points  of 
controversy.  But  their  search  was  —  like  that  of  most  persons  who 
adopt  the  theory  before  they  ascertain  the  facts  —  only  for  short  and 
convenient  passages  to  sustain  foregone  conclusions.  And  even  the 
so-called  "  state  rights  "  men  of  the  original  states  neglect  these  truths, 
which  sparkle  like  gems  wherever,  in  the  archives  and  constitutions  of 
the  said  commonwealths,  they  look  ! 


CHAPTER  VI 

ADROIT  SUBSTITUTIONS. 
INTERPRETATION  No.   10.  —CHANGING  TERMS  AND  MEANINGS. 

WHEN,  in  1861,  Mr.  Edward  Everett  was  preparing  his  address 
to  strengthen  the  "public  convictions"  against  the  South, 
and  against  his  own  previous  utterances,1  he  saw  that  the  thirteen 
ratifications  were  the  only  means  of  communicating  the  power  of  the 
people  to  the  federal  compact ;  that  each  of  these  ratifications  was 
passed  by  the  highest  legislative  body  known  —  the  one  usually 
employed  by  the  people  in  such  sovereign  action  ;  and  that  the  acts 
of  such  bodies  were  generally  considered  to  be  of  the  character  of  or- 
dinances or  enactments.  He  saw  that,  for  his  argument,  "  ordinance  " 
was  a  bad  name,  for  the  reason  that  the  power  of  enactment  and  that 
of  repeal  are  commensurate  ;  and  hence  in  order  to  refute  'the  seces- 
sionists, he  conceived  the  idea  of  substituting  "  deed "  for  "  ordi- 
nance," and  thereby  getting  a  more  favorable  definition,  to  assist  in 
producing  the  desired  "  public  convictions." 

So,  in  his  address  of  the  4th  of  July,  1861,  we  find  him  speaking 
of  South  Carolina's  ordinance  of  secession  as  follows  :  "It  was  in- 
tended, by  calling  the  act  of  ratification  an  ordinance,  to  infer  a  right 
of  repealing  it,  by  another  ordinance.  It  is  important,  therefore,  to 
observe  that  the  act  of  ratification  is  not,  and  was  not,  at  the  time, 
called  an  ordinance,  and  contains  nothing  which  by  possibility  can  be 
repealed."  [I.  Reb.  Rec.  8.] 

But,  as  if  lacking  confidence  in  this  link  of  his  feeble  chain,  he 
wrote  to  "  the  learned  and  accurate  historian  of  the  constitution," 
Mr.  George  Ticknor  Curtis,  who  strengthened  it  as  follows  :  "  I  have 

1  In  1826,  Mr.  Everett  was  in  Congress,  and  a  warm  defender  of  the  states.  He  then 
agreed,  with  Mr.  Jefferson,  that  "  the  constitution  of  the  united  states  is  a  compact  of 
independent  nations."  [VII.  Jefferson's  Works.]  On  May  29,  1860,  he  wrote  to  Wash- 
ington Hunt  against  coercion,  and  said  our  "  union  of  co-equal  sovereign  states  re- 
quires, as  its  basis,  the  harmony  of  its  members,  and  their  voluntary  co-operation  in 
its  organic  functions."  On  February  22,  1861,  he  wrote:  "  To  expect  to  hold  fifteen 
states  in  the  union  by  force,  is  preposterous.  ...  If  our  sister  states  must  leave  us,  in 
the  name  of  Heaven,  let  them  depart  in  peace." 


ADROIT  SUBSTITUTIONS.  189 

looked  carefully  at  the  ratification,"  and  found  it  to  be  "  much  more 
in  the  nature  of  a  deed,  or  grant,  than  an  ordinance.  An  ordinance 
would  seem  to  be  an  instrument,  adopted  by  a  public  body,  for  the 
regulation  of  a  subject,  which,  in  its  nature,  remains  under  the  regu- 
lation of  that  body ;  —  to  operate  till  otherwise  provided  for ; "  while 
"  a  deed,  or  grant,  operates  to  pass  something ;  and,  unless  there  be  a 
reservation  of  some  control  over  the  subject-matter  by  the  grantor, 
his  cession  is  necessarily  irrevocable.  .  .  .  These  distinctions  are  appli- 
cable to  the  cession  of  political  powers  by  a  people.  .  .  .  The  question 
submitted  to  the  people  of  South  Carolina  by  the  congress,  was, 
whether  they  would  cede  the  powers  of  government,  embraced  in  an 
instrument  sent  to  them.  ...  In  other  words,  they  were  asked  to 
make  a  grant  of  those  powers.  When,  therefore,  the  duly  authorized 
delegates  of  the  people  of  South  Carolina,  executed  an  instrument  under 
seal,  declaring  that  they,  l  in  the  name  and  behalf '  of  that  people,  '  assent 
to  and  ratify  the  said  constitution,'  I  can  perceive  no  propriety  in  call- 
ing this  deed  an  ordinance." 

At  the  very  outset,  Mr.  C.  unwittingly  shows  the  impropriety  of 
calling  the  "ordinance"  a  "deed."  The  act  he  treats  of,  was  "an  in- 
strument adopted  by  a  public  body,  for  the  regulation  of  a  subject, 
which,  in  its  nature,  remains  under  the  regulation  of  that  body." 
What  that  " public  body"  was,  Mr.  C.  well  knew,  for  the  following 
words,  which  he  did  not  quote,  were  at  the  head  of  the  very  "  ordi- 

ince"  which  he  pretends  is  a  "deed."  "In  convention  of  the  people 
the  state  of  South  Carolina."  That  "  body  "  was  a  republic,  and 

ic  subject  of  the  action  was  self-government,  which  was  never  in- 

mded  to  be  alienated,  but  was  to  remain  forever  and  ever  "  under 

the  regulation  of  that  body."     So  much  for  his  artifice  of  exchanging 

words  to  get  an  advantage  in  definition.     He  succeeded  in   showing 

the  absolute  propriety  of  calling  the  "  deed  "  an  "  ordinance." 

And  it  is  untrue  that  Congress  "  submitted  "  any  question  to  the 
people,  or  the  convention  of  South  Carolina,  at  least  in  any  such 
sense  as  Mr.  Curtis  implies  ;  and  even  the  "  convention  of  states"  did 
not  do  so ;  but  South  Carolina  submitted  a  question  to  herself — her 
legislature  speaking  her  voice  in  the  submission.  The  following  is  an 
extract  from  the  very  ratification  Mr.  C.  "  looked  carefully  "  at :  "  The 
convention  having  maturely  considered  the  constitution  or  form  of 
government,  reported  to  Congress  by  the  convention,  .  .  .  and  sub- 
mitted to  them  by  a  resolution  of  the  legislature  of  this  state,"  etc. 

Again,  Mr.  Curtis  incorrectly  represents  the  matter  of  ratifying. 
The  convention  of  South  Carolina  sat  and  deliberated  for  her  alone, 
acting  exclusively  with  her  power.  The  very  beginning  of  the  act  is 
as  follows  :  "  In  convention  of  the  people  of  the  state  of  South  Carolina, 


190  FALLACIOUS  EXPOSITION. 

by  their  representatives,  held  in  the  city  of  Charleston,"  etc.  After 
full  discussion  of  the  federal  plan,  South  Carolina,  in  convention,  by 
a  vote  of  149  to  73,  passed,  enacted,  or  ordained,  the  following  :  "  The 
convention  ...  do,  in  the  name  and  behalf  of  the  people  of  this  state, 
hereby  assent  to,  and  ratify  the  said  constitution.  Done  in  conven- 
tion, 23d  day  of  May,  A.  D.  1788." 

In  the  following  particulars  also,  Mr.  Curtis'  statement  is  "  conspic- 
uously inexact."  1.  He  implies  that  "the  duly  authorized  delegates  " 
represent  "  the  people  of  South  Carolina,"  as  a  mass  of  individuals,  a 
mere  fraction  of  the  nation,  doing  its  part  in  the  establishment  of  the 
constitution  ;  and  not  as  a  political  body.  He  seems  to  forget  that 
said  delegates  could  only  act  as  a  body,  and  for  a  body.  2.  To  help 
out  the  "deed"  idea,  he  calls  it  an  instrument  under  seal,  though  it 
has  none  of  the  peculiarities  of  one.  The  authority  executing  the 
instrument  probably  affixed  no  seal,  the  president  and  secretary  using 
theirs  merely  for  authentication.  The  convention  could  hardly  have 
had  a  seal,  and  that  of  the  state,  most  likely,  could  only  have  been 
used  by  the  governor  or  secretary  of  state,  who  had  no  official  con- 
nection with  the  act.  3.  He  ignores  the  "  convention  of  the  people  of 
the  state  of  South  Carolina  "  altogether.  4.  He  even  garbles,  to  avoid 
quoting  the  word  "  state,"  as  it  would  bring  to  view  the  political  body 
acting.  5.  He  leaves  out  the  vote,  which  shows  beyond  question  that 
assenting  to,  and  ratifying,  was  done  by  a  body-politic.  As  he  does 
all  these  things,  and  more,  in  the  thirty-five  words  I  have  underscored 
above,  he  must  rank  as  the  leading  expounder  of  the  present  day. 

But  let  us  quote  more  of  this  astounding  letter.  Mr.  C.  continues 
that  "there  are  those  who  pretend  that  the  most  absolute  and  unre- 
stricted terms  of  cession,  which  would  carry  any  other  subject  entirely 
out  of  the  grantor,  do  not  so  operate,  when  the  subject  of  the  grant 
is  political  sovereignty ;  but  a  political  school  which  maintains  that  a 
deed  is  to  be  construed  in  one  way,  when  it  purports  to  convey  one 
description  of  right,  such  as  political  sovereignty,  and  in  another, 
when  it  purports  to  convey  a  right  of  another  kind,  such  as  property, 
would  hold  a  very  weak  brief  in  any  tribunal  of  jurisprudence,  if 
the  question  could  be  brought  to  that  arbitrament.  The  American 
people  have  been  much  accustomed  to  treat  political  grants,  made  by 
the  sovereign  power  without  reservation,  as  irrevocable  conveyances, 
and  executed  contracts ;  and,  although  they  hold  to  the  right  of  revo- 
lution, they  have  not  yet  found  out  how  a  deed,  absolute  on  its  face, 
is  to  be  treated  in  point  of  law  as  a  repealable  instrument,  because  it 
deals  with  political  rights  and  duties." 

If  these  are  the  real  views  of  Mr.  Curtis,  he  has  utterly  failed  to 
"  rise  to  the  height  of  the  great  argument  "  of  a  republic.  The  people, 


ADROIT  SUBSTITUTIONS.  191 

whether  states  or  a  nation,  were  establishing  institutions  of  self-gov- 
ernment. To  remain  republican,  i.  e.  to  remain  a  self-governing  peo- 
ple, it  was  essential  that  sovereignty  should  be  forever  in  them.  All 
the  fathers  considered  —  as  Wilson,  of  Pennsylvania,  expressed  it  — 
that  "  the  supreme,  absolute,  and  uncontrollable  power  is  in  the  peo- 
ple before  they  make  a  constitution,  and  remains  in  them  after  it  is 
made." 

Now  this  is  the  absolutely  essential  idea  of  a  republican  polity, 
lli'iice,  no  such  question  was,  or  could  have  been,  submitted  to  the 
people  of  South  Carolina  —  or  even  thought  of —  as  whether  or  not 
"  the  powers  of  government "  or  "political  sovereignty  "  should  be  irrev- 
ocably alienated  by  them"?  Ceding,  surrendering,  relinquishing,  or 
alienating  "  powers,"  by  "  irrevocable  conveyances,"  never  entered  the 
public  mind ;  but  the  question  in  each  of  the  then  existent  commu- 
nities of  people  virtually  was  :  "  Shall  we,  the  state,  delegate  these 
powers  [not  to  govern  us,  as  a  commonwealth,  for  we  govern,  but]  to 
govern  our  subjects'?  Those  who  are  to  exercise  these  powers  will  be 
our  citizens,  elected  by  us.  They  will  be  our  representatives,  dele- 
gates, agents,  trustees,  and  subjects,  exercising  for  us  the  authority 
we  delegate  —  no  more  !  " 

"  Delegate,"  then,  is  the  only  Correct  Word.  —  All  the  other 
words  to  be  found  in  the  common  parlance,  political  essays,  debates, 
state  papers,  etc.,  of  that  day,  must,  when  they  refer  to  the  vesting 
of  powers  in  a  government,  be  limited  in  meaning  to  " delegate" 
because,  1st,  in  the  nature  of  things,  the  people  are  the  real  govern- 
ment, the  so-called  government  being  only  an  agency,  and  possessing 
only  delegated  power;  2d,  the  constitution  exhibits  only  a  created 
government  and  derivative  authority.  Article  I.  says  that  "  all  legis- 
lative powers  herein  granted  shall  be  vested  in  a  congress,"  etc. ;  Article 
II.  that  "the  executive  power  shall  be  vested  in  a  president,"  etc.; 
Article  III.  that  "the  judicial  power  of  the  united  states  shall  be 
vested  in  one  supreme  court,"  etc.;  and  Amendment  X.  that  "the 
powers  not  delegated  to  the  united  states  by  this  constitution,  .  .  . 
are  reserved,"  etc.  All  the  powers  of  the  constitution,  then,  are 
"  delegated." 

This  word  also  refers  back  to,  defines,  and  absolutely  controls  the 
meaning  of  "relinquished"  and  "vested,"  used  in  the  ordinance  of 
South  Carolina,  in  the  declaration  that  "  the  states  "  "  retain  every 
power  not  expressly  relinquished  by  them,  and  vested  in  the  general 
government." 

This  view  is  more  evident,  from  the  fact  that  all  the  other  states 
that  expressed  themselves  on  the  subject,  used  the  precise  word 
"  delegated."  [See  the  ratifications  of  Mass.,  N.  H.,  N.  Y.,  R.  I., 


192  FALLACIOUS  EXPOSITION. 

Va.,  and  N.  C.,  I.  Ell.  Deb.  322,  325,  327,  334 ;  III.  Ibid.  659 ;   IV. 
Ibid.  244.] 

The  views  of  Messrs.  Everett  and  Curtis,  then,  are  untrue  in  fact, 
and  unfounded  in  reason  and  political  philosophy.  There  is  no  "deed 
absolute  on  its  face,"  no  "  irrevocable  conveyance  "  of  "  powers  of 
government  "  or  "  political  sovereignty ; "  but  there  is  an  ordinance, 
by  "  a  public  body,  for  the  regulation  of  a  subject  which,  in  its  nature, 
remains  under  the  regulation  of  that  body,  to  operate  till  otherwise  pro- 
vided for"  And  no  such  "  deeds,"  "  cessions,"  "  conveyances,"  or 
"  alienations,"  as  they  allege,  can  be  found  in  American  history ;  and 
it  is  the  reverse  of  true  that  the  American  people  have  been  accus- 
tomed to  treat  such  "  political  grants  "  as  "  irrevocable  conveyances." 
The  very  "  political  grants,"  which  he  describes  as  "  powers  of  gov- 
ernment," and  misdescribes  as  "  political  sovereignty,"  are  in  all  the 
state  constitutions,  and  in  the  federal  one,  too,  arid  are  entirely  sub- 
ject to  revocation  and  amendment,  no  matter  whether  it  is  provided 
for  or  not ;  and  so  in  the  case  of  all  municipal  corporations.  The  peo- 
ple, as  organized,  are  supreme,  and  have  unlimited  power  of  amend- 
ment or  repeal. 

As  these  writers  based  their  dogma  of  an  "  irrevocable  cession  "  of 
"  political  sovereignty  "  on  statements  proved  to  be  untrue,  and  argu- 
ments shown  to  be  fallacious,  we  may  consider  their  signal  failure  as 
a  concession  that  the  ordinances  are  repealable,  and  the  powers  revo- 
cable, as  is  undoubtedly  the  case. 

There  are  several  other  ideas  of  this  remarkable  letter  of  Mr.  Curtis, 
which  would  justify  more  than  the  mere  mention  I  must  content  my- 
self with. 

1st.  If  he  proves  an  "irrevocable  conveyance"  of  "political  sove- 
reignty," he  proves  that  the  republican  form  of  government  here,  is  at 
an  end,  i.  e.  that  the  people  have  self-government  no  longer ! 

2d.  He  confounds  powers  of  government  with  "political  sove- 
reignty," though  the  latter  is  the  right  to  exercise  or  delegate  the 
former.  Any  part  or  the  whole  of  such  "  powers  "  may  be  delegated 
without  diminishing  sovereignty  in  the  least.1 

1  It  is  almost  universal  to  consider  sovereignty  as  made  up  of,  or  as  divisible  into, 
the  powers  of  government,  and  subject  to  delegation  or  reservation.  Even  while  con- 
tending for  the  absolute  sovereignty  of  the  states,  Mr.  A.  H.  Stephens  seems  to  argue 
that  such  sovereignty  was  impliedly  reserved,  in  the  original  compact,  among  a  "  mass 
of  residuary  rights;"  but  that,  to  quiet  apprehension,  "this  reservation  was  soon  after 
put  in  the  constitution,  amongst  other  amendments,  in  plain  and  unequivocal  language." 
The  4i  reservation  "  he  speaks  of,  is  that  of  "  the  powers  not  delegated,"  —  in  the  Tenth 
Amendment.  [See  I.  War  between  the  States,  489.]  He  seems  to  forget  that  it  is  sove- 
reignty, which  acts,  in  delegating  and  reserving  powers,  and  that  its  own  existence  or 
transfer  cannot  be  involved.  The  truth  is,  the  constitution  neither  mentions  nor  even 
remotely  alludes  to  sovereignty. 


ADROIT  SUBSTITUTIONS.  193 

3d.  He  announces  that  "political  sovereignty"  is  subject  to  aliena- 
tion, like  property.  If  so,  why  is  it  not  subject  to  bargain  and  sale  ? 
Massachusetts,  enriched  by  tariffs,  bounties,  etc.,  may  buy  out  the 
stock  at  Washington,  including  what  the  people  of  South  Carolina 
alienated,  and  Mr.  Curtis  may  mount  the  viceregal  throne  of  that 
province.  Nothing  at  Washington  is  extra  commercium.  Or  suppose, 
firstly,  South  Carolina  becomes  bankrupt;  secondly,  makes  a  cessio 
honor um ;  thirdly,  Massachusetts  becomes  the  highest  bidder;  and, 
fourthly,  Viceroy  Curtis !  These  political  teachers  often  advance 
startling  ideas,  —  and  work  up  to  them  ! 

4th.  He  leaves  us  to  conjecture  his  grantee  of  the  "irrevocable 
cession,"  by  "absolute  conveyance,"  of  "political  sovereignty."  It 
cannot  be  the  nation,  for  that  is  his  grantor  nor  "  the  united  states," 
for  he  denies  that  they  are  sovereigns.  His  grantee  is  "  the  govern- 
ment," to  which  he,  like  the  Philadelphia  platform,  ascribes  "  abso- 
lute supremacy  "  and  the  allegiance  of  the  states.  But  the  government 
cannot  be  the  grantee,  because,  1st,  the  alleged  grants  are  delegations, 
and  the  pretended  grantee  is  a  trustee  and  agent,  using  the  powers  for 
a  principal  or  principals ;  2d,  the  instrument  containing  the  grants 
was  "ordained"  in  1788,  while  the  government  was  not  elected  and 
organized  till  the  spring  of  1 789.  How  could  it  be  a  grantee  1  3d,  the 
government  could  not  be  a  party  to  the  act  creating  it ;  4th,  it  is 
not  the  government,  but  the  independent  branches  thereof,  that  the 
grants  or  delegations  are  confided  to ;  e.  g.  "  All  legislative  powers 
herein  granted  shall  be  vested  in  a  congress,"  etc.  [See  also  the 
executive  and  judicial  delegations.]  It  is,  then,  not  the  "govern- 
ment "  [with  a  big  G]  that  is  "  grantee."  The  said  government,  in- 
stead of  being  a  unit,  with  oneness  of  mind  and  will,  is  three  units, 
each  distinct,  coequal,  and  absolutely  independent,  and  each  with  final 
and  exclusive  will,  as  to  its  own  duty. 

5th.  All  the  officials  are  citizens  and  subjects  of  the  several  states, 
acting  temporarily  in  a  representative  capacity.  How  could  they, 
either  as  individuals  or  a  corporation,  have  the  technical  capacity  of 
grantee  ?  Moreover,  the  grantee  of  "  political  sovereignty  "  must  be 
sovereign ;  and  yet  Webster  says  "  sovereignty  in  government "  "  is 
unknown  in  North  America."  So  Mr.  Curtis  is  contradicted  by  his 
hero  ! 

6th.  And,  finally,  Amendment  X.  affords  absolute  proof  that  the 
only  possible  grantee  was  "the  united  states."  "The  powers  not 
delegated  to  the  united  states  by  the  constitution  .  .  .  are  reserved,"  etc. 
It  is,  then,  the  association  of  states  that  is  the  grantee,  and  the  govern- 
ment, personally  composed  of  subjects  of  states,  is  the  association's 
agency.  Nothing  at  all  is  alienated  to  the  government. 

13 


194  FALLACIOUS  EXPOSITION. 

We  see,  then,  that  "  grantee  "  has  no  other  sense  than  delegatee, 
trustee,  and  agent.  No  instrument  has  "operated  to  pass  some- 
thing." The  states  are  associated  as  equals ;  they  are  not  changed 
by  their  act  of  association,  in  name,  people,  geography,  organism,  or 
authority ;  they  are  "  the  united  states,"  and  are  themselves  the  real 
government,  the  so-called  governments  being  their  created  agencies, 
acting  solely  with  their  life  and  power.  All  American  history  sup- 
ports this  view. 

The  People  never  part  with  Self-rule.  —  I  now  gladly  contrast 
with  the  foregoing  errors,  the  wisdom  of  the  "best  minds"  of  the 
golden  age  of  Massachusetts,  as  expressed  by  "  the  celebrated  Chief 
Justice  Parsons,"  in  her  ratifying  convention,  with  the  assent  of  Han- 
cock, Adams,  Bowdoin,  Ames,  King,  Gore,  and  others.  The  new  po- 
litical system,  said  he,  is  "  a  government,  to  be  administered  for  the 
common  good,  by  the  servants  of  the  people,  vested  with  delegated 
powers,  by  popular  elections,  at  stated  periods.  The  federal  constitu- 
tion establishes  a  government  of  this  description,  and  in  this  case 
the  people  divest  themselves  of  nothing.  The  government  and 
powers  which  the  congress  can  administer,  are  the  mere  result  of  a 
compact,"  etc. 

While  dealing  with  this  most  vital  subject,  it  is  perhaps  best  to 
group  a  few  of  the  many  high  authorities  at  hand,  to  emphasize  the 
assertion  that  the  people  made  no  conveyance  of  power  whatever,  except 
in  the  sense  of  trusts  or  delegations,  to  their  own  "  agents,"  "  ser- 
vants," or  "  substitutes,"  as  all  the  fathers  and  all  the  states  consid- 
ered (and  actually  called)  these  grantees. 

"  The  people  are  the  fountain  of  all  power.  They  must,  however, 
delegate  it  to  agents."  [Pendleton.]  "  The  federal  and  state  govern- 
ments are,  in  fact  but  different  agents  and  trustees  of  the  people." 
[Madison.]  "The  people  are  the  masters  who  gave  it,  and  of  whom 
the  servants  hold  it."  [Marshall.]  "  Those  who  are  entrusted  with 
the  administration,  are  no  more  than  the  creatures  of  the  people." 
[Washington.]  "  By  their  servants  they  govern.  They  do  not  re- 
nounce their  power ;  they  do  not  sacrifice  their  rights ;  they  become 
the  true  sovereigns  of  the  country,  when  they  delegate  that  power, 
which  they  cannot  use  themselves,  to  their  trustees."  [Fisher  Ames.] 
Hamilton,  Livingston,  Wilson,  Iredell,  Pinckney,  and  many  other  most 
eminent  fathers  could  be  quoted  to  the  same  effect,  —  all  of  them  agree- 
ing, that  THE  PEOPLE  DIVEST  THEMSELVES  OF  NOTHING,  but  do  all  such 

acts,  as  establishing  governmental  agencies  and  administering  them,  as 
societies,  each  a  republic,  with  inherent,  inalienable,  and  unlimited 
right  of  self-government.  The  federal  convention  unanimously  de- 
clared, "  The  style  of  this  government  shall  be  the  united  states"  This 


ADROIT  SUBSTITUTIONS.  195 

has  no  other  meaning  than  that  these  societies  of  people  "divested  them- 
selves of  nothing"  but  intended,  under  the  new  system,  to  continue 
the  function  of  governing  themselves.  Function,  I  say,  for  society 
naturally  and  functionally  governs  itself,  —  doing,  under  its  Maker, 
what  it  was  made  for,  just  as  man  feels,  thinks,  acts,  walks,  talks,  eats, 
digests,  etc.,  in  governing  and  preserving  himself  according  to  his 
being. 

Yes,  common  sense  shows  that  a  republican  people  must  "divest 
themselves  of  nothing,"  if  they  preserve  liberty  and  self-government ; 
and  that  the  powers  they,  with  other  societies,  put  in  government 
must  be  "  the  mere  result  of  a  compact ; "  and  must  be  powers  dele- 
gated or  entrusted  to  an  agency. 

I  can  wind  up  this  chapter  with  nothing  more  apposite,  instructive, 
and  conclusive,  than  an  extract  from  his  "  Examination  of  the  Leading 
Principles  of  the  Federal  Constitution,"  by  Noah  Webster,  —  an  ex- 
pounder whom  the  American  people  should  better  know.  The  italics 
are  his :  "  The  states,  in  their  separate  capacity,  cannot  provide  for 
the  common  defence ;  nay,  in  case  of  a  civil  war,  a  state  cannot  secure 
its  own  existence.  The  only  question,  therefore,  is  whether  it  is 
necessary  to  unite,  and  provide  for  our  common  defence  and  general 
welfare."  If  yes,  continues  he,  there  is  need  of  "  constituting  a 
power  over  the  whole  united  states,  adequate  to  these  general  pur- 
poses." 

"  The  states,  by  granting  such  power,  do  not  throw  it  out  of  their 
own  hands,  —  they  only  throw  each  its  proportion  into  a  common 
stock,  —  they  merely  combine  the  powers  of  the  several  states  into 
one  point,  where  they  must  be  collected,  before  they  can  be  exerted. 
But  the  powers  are  still  in  their  own  hands,  and  cannot  be  alienated, 
till  they  create  a  body  independent  of  themselves,  with  a  force  at  its 
command,  superior  to  the  whole  yeomanry  of  the  country ! "  [See 
New  Haven  Gazette,  Nov.  29,  1787.] 


CHAPTEE    VII. 

MISSTATING  HISTORY  AND   RECORDS. 

INTERPRETATION  No.   11.— MISSTATING  THE  VIEWS  AND    ACTS  OF 
THE  CONVENTION. 

JUST  as  they  tear  the  "  We-the-people  "  shred  from  the  preamble,  and 
show  by  it  that  the  constitution  is  not  a  union  of  states,  but  is 
an  association  of  the  people  thereof  to  form  a  nation,  of  which  the 
states  are  mere  provincial  parts,  these  expounders  pick  out  of  the 
record  of  the  convention  of  1787,  and  of  the  speeches  and  writings 
of  the  fathers,  little  passages,  which,  torn  from  the  contexts,  support 
their  theory.  In  this  chapter  I  shall  confine  myself  principally  to 
exposing  the  misstatements  or  mistakes  made  in  reference  to  the 
action  and  plan  of  the  "  convention  of  states  "  of  1787.  I  will  begin 
by  reiterating  briefly  — 

The  Reasons  for  making  a  New  Federation.  —  The  first  "  federal 
government  of  these  states  "  consisted  of  a  mere  congress,  vested  with 
nearly  the  same  legislative  powers  as  the  present  one.  But,  as  it  had 
no  coercive  authority  to  enforce  its  enactments,  compliance  was  virtu- 
ally at  the  option  of  the  states.  Of  course  such  a  governmental  con- 
trivance was  weak  and  inefficient ;  and,  when  peace  supervened,  and 
"union  or  subjugation  "  ceased  to  be  the  momentous  alternative,  each 
state  began  to  exercise  her  free  will  as  to  commerce,  currency,  debt, 
contributions  for  defence,  etc.,  and  other  matters  of  common  interest. 
The  tendency  of  things  was  towards  disunion  and  weakness,  if  not 
civil  or  internecine  strife.  Hence,  the  wise  and  patriotic  fathers  coun- 
selled their  states,  and  finally  induced  them  to  "  form  a  more  perfect 
union,"  and  "  a  more  efficient  federal  government,"  giving  to  this  the 
legislative  powers  of  the  first,  with  a  few  additional  ones,  as  well  as 
commensurate  executive  and  judicial  authority, — thus  making  for  fed- 
eral matters  the  complete  government  that  each  state  enjoyed,  and 
giving  to  it  the  same  authority  and  means  of  enforcing  its  powers  on 
individual  citizens  that  the  state  governments  possessed ;  so  that  the 
said  agencies,  state  and  federal,  became  a  great  "political  machine," 
owned  and  worked  by  the  states,  through  their  elected  agents, — these 


MISSTATING  HISTORY  AND  RECORDS.  197 

being  their  own  citizens  and  subjects.  [See  Part  II.,  Ch.  I.]  The  said 
states  were  themselves  to  compose  whatever  nation  there  was  to  be, 
and  it  was  they  alone  that  authorized  legal  coercion  of  their  citizens 
by  their  federal  agency ;  but  they  most  positively  and  carefully  with- 
held jurisdiction  and  coercive  power  over  themselves. 

The  history  and  records  of  the  country  contain  no  word  of  testi- 
mony against  the  above ;  but  the  perverters  have,  by  industrious  cull- 
ing, gathered  "  line  upon  line,  and  precept  upon  precept,  here  a  little 
and  there  a  little,"  until  they  have  produced  a  sort  of  "  mosaic  dis- 
pensation "  of  centralism,  from  which  arises  that  monster,  the  corpo- 
rate despot  of  Washington ! 

The  Misstatement  to  be  refuted.  —  Not  long  after  the  opening 
of  the  convention,  to  wit,  on  May  30,  1787,  it  was  resolved  that  "  a 
national  government  ought  to  be  established,  consisting  of  a  supreme  legis- 
lative, executive,  and  judiciary"  [I.  Ell.  Deb.  151.]  Daniel  Webster 
quotes  this,  and  asserts  that  "it  completely  negatives  all  idea  of 
league,  compact,  and  confederation.  Terms  could  not  be  chosen," 
continues  he,  "  more  fit  to  express  an  intention  to  establish  a  national 
government,  and  to  banish  forever  all  notion  of  a  compact  between 
sovereign  states."  [Speech  of  1833.]  And  Judge  Story  comments 
in  the  same  style.  He  quotes  the  above  resolution,  and  says :  "  It 
plainly  shows  that  it  was  a  national  government,  and  not  a  compact, 
which  they  were  about  to  establish."  He  further  remarks  that  "  the 
inefficiency  of  the  old  confederation  forced  the  states  to  surrender 
the  league  then  existing,  and  to  establish  a  national  constitution." 
[I.  Story,  Com.  237.] 

The  two  leading—  if  not  the  only — ideas  Story  and  Webster  aim 
at  in  this  quotation  are  involved  in  "  national "  and  "  supreme."  They 
use  the  above  resolution  to  prove,  1st.  That  a  consolidated  nation  was 
formed;  2d.  That  the  government  of  it  is  a  sovereignty.  Taught 
by  them,  Lincoln  said  the  states  are  mere  counties,  with  no  rights  but 
those  reserved  to  them  by  the  nation  in  the  constitution.  t  The  dogma 
of  the  "absolute  supremacy"  of  "the  government,"  and  the  alle- 
giance of  the  states  thereto,  promulgated  by  the  Philadelphia  con- 
vention of  1866,  sprung  from  the  same  source.  All  these  heresies  are 
comprehended  in  Webster's  assertion  that,  so  far  as  the  constitution 
goes,  "so  far  state  sovereignty  is  effectually  controlled." 

Both  of  the  above  ideas  of  Story  and  Webster  are  utterly  baseless ; 
and  the  use  of  the  said  resolution  to  prove  them  is  wrongful.  The 
resolution  was  adopted  without  much  notice,  and  with  no  debate,  and 
was  referred  to  the  committee  of  the  whole,  with  other  propositions,  as 
matters  for  future  consideration,  [V.  Ell.  Deb.  134,]  and  in  the  three 
and  a  half  months  of  subsequent  deliberation,  the  direct  contrary  of 


198  FALLACIOUS  EXPOSITION. 

what  the  perverters  predicate  of  this  resolution  was  contended  for, 
and  finally  prevailed,  as  I  will  now  proceed  to  show  historically.  [The 
reading  of  Appendix  C,  with  this  chapter,  is  important.] 

Two  or  three  plans  for  a  federal  constitution  were  before  the  com- 
mittee of  the  whole  convention.  Edmund  Randolph's  plan  opened  as 
follows  : 

"  1.  Ejesolved,  That  the  articles  of  confederation  ought  to  be  so 
corrected  and  enlarged  as  to  accomplish  the  objects  proposed  by  their 
institution,  namely  :  common  defence,  security  of  liberty,  and  general 
welfare."  On  May  30th,  at  the  suggestion  of  G.  Morris,  Randolph 
moved  the  postponement  of  this,  and  the  consideration  of  the  three 
following  :  "  1st.  That  a  union  of  states,  merely  federal,  will  not  accom- 
plish the  objects  proposed.  .  .  .  2d.  That  no  treaty  or  treaties  among 
the  whole  or  part  of  the  states,  as  individual  sovereignties,  would  be 
sufficient.  3d.  That  a  national  government  ought  to  be  established, 
consisting  of  a  supreme  legislative,  executive,  and  judiciary."  Several 
members  at  once  expressed  the  doubt  "  whether  the  act  of  Congress 
recommending  the  convention,  or  the  commissions  of  the  deputies 
to  it,  would  authorize  a  discussion  of  a  system  founded  on  different 
principles  from  the  federal  constitution  1"  [V.  Ell.  Deb.  133.]  Where- 
upon, the  first  two  of  the  above  resolutions  were  dropped,  and  not  heard 
of  afterwards  ;  and  the  third  became  the  first  of  nineteen  resolutions, 
which  the  convention  adopted  for  consideration  [Ibid.  189],  and  in 
which  the  prospective  constitution  is  repeatedly  styled  —  the  "  articles 
of  union."  [Ibid.  190.] 

How  the  States  instructed  their  Deputies.  —  Before  going  fur- 
ther, it  is  well  to  note  the  instructions  in  the  commissions  of  the 
deputies,  and  "  the  act  of  congress  "  referred  to.  Massachusetts,  in 
commissioning  hers,  said,  "the  sole  and  express  purpose"  was  to 
make  such  "  alterations  and  provisions,"  as  will  "  render  the  federal 
constitution  adequate  to  the  exigencies  of  government,  and  preserva- 
tion of  the  union."  [I.  Ell.  Deb.  126.]  "To  revise  the  federal  con- 
stitution," was  the  phase  of  several ;  and  "  to  render  the  constitution 
of  the  federal  government  adequate  to  the  exigencies  of  the  union," 
was  the  language  of  others.  [See  I.  Ell.  Deb.  126-139,  for  the 
language  of  all.]  And  the  act  of  the  congress  of  the  states  upon  the 
subject,  expresses  the  same  idea,  in  nearly  the  same  words.  [Ibid. 
119-20.]  I  will  observe,  en  passant,  that  these  extracts  enable  us  to 
appreciate  another  of  the  errors  that  so  abound  in  some  of  Mr.  Web- 
ster's efforts,  viz.  :  that  the  instrument  of  1778  was  called  "articles  or 
confederation,"  while  the  one  of  1788  "  called  itself  a  constitution,"  i.  e. 
"  a  government  proper,"  and  that  therefore  the  two  systems  were  essen- 
tially different.  Without  insisting  that  "there  is  nothing  in  a  name," 


MISSTATING  HISTORY  AND  RECORDS.  199 

I  merely  state  the  fact,  that  both  states  and  fathers  habitually  called 
each  instrument  "  the  federal  constitution,"  and  "  the  constitution  of 
the  federal  government."  In  reference  to  the  instructions,  the  pre- 
sumption is,  that  the  deputies  obeyed  them.  We  shall  see  that  they 
did  so.  [See  Appendix  C,  No.  1.] 

It  appears,  then,  that  the  states  instructed  their  deputies  to  amend 
the  confederation ;  that  the  convention  tacitly  conceded  that  "  the 
commissions  of  the  deputies,"  and  "  the  act  of  congress,"  only  warranted 
the  making  of  a  federal  system ;  and  that  it  formally  declined  to  say 
that  "a  union  of  states  merely  federal"  made  by  a  treaty  among  the 
states  as  sovereignties,  would  not  accomplish  the  object  in  view.  And 
we  shall  see  that,  so  far  from  attempting  the  nationalization  of  the 
states,  the  constant  aim  of  the  fathers  was  to  induce  them  to  federalize 
themselves,  and  remain  intact  as  sovereigns ;  and  that  in  the  course 
of  the  deliberations,  every  "  national "  word  and  idea  was  gradually 
eliminated  from  the  system.  But  before  going  further,  it  must  be 
shown  that  Story  and  Webster  gain  their  whole  basis  by  misquota- 
tion ! 

The  Expounders'  Style  of  Quoting.  —  The  very  resolutions,  the 
first  of  which  they  quote  as  the  basis  of  their  theory,  prove  the  entire 
falsity  of  it.  To  show  this,  let  us  put  the  first,  and  the  last  two  in 
juxtaposition,  and  refer  to  the  others :  "  1.  Resolved,  that  it  is  the 
opinion  of  this  committee,  that  the  national  government  ought  to  be 
established,  consisting  of  a  supreme  legislative,  executive,  and  judiciary. 
...  18.  Resolved,  that  the  legislative,  executive,  and  judiciary 
powers,  within  the  states,  ought  to  be  bound  by  oath  to  support  the 
articles  of  union.  19.  Resolved,  that  the  amendments  which  shall  be 
offered  to  the  confederation,  by  the  convention,  ought,  at  a  proper 
time  or  times,  after  the  approbation  of  congress,  to  be  submitted  to  an 
assembly  or  assemblies  of  representatives,"  etc.  [I.  Ell.  Deb.  181-2  ; 
V.  Ibid.  189-90.]  Here  we  see  that  not  only  was  the  convention 
instructed,  as  heretofore  shown,  to  amend  the  articles  of  confederation, 
but  that  such  "  national  government "  as  the  convention  aimed  at, 
was  to  be  provided  for,  in  "  articles  of  union  "  of  states ;  and  that  the 

DESIDERATUM  WAS  TO  BE  ATTAINED  BY  MAKING  "  AMENDMENTS  "  "TO  THE 
CONFEDERATION." 

Now  these  expounders,  suppressing  all  the  others,  put  the  first  reso- 
lution before  the  people,  to  make  them  believe  that  the  convention 
"  completely  negatived  all  idea  of  ...  confederation/'  Is  not  this 
garbling  the  sacred  records?  In  like  spirit,  they  point  to  the  Ran- 
dolph, or  Virginia  plan,  that  these  resolutions  are  a  part  of,  as  national, 
and  to  the  Patterson,  or  New  Jersey  plan,  as  federal,  and  represent 
that  the  former  prevailed,  when,  in  reality,  a  pure  league,  federation, 


200  FALLACIOUS  EXPOSITION. 

or  union  of  states,  was  formed.  The  two  plans,  as  originally  intro- 
duced, are  in  I.  Elliott's  Debates,  pp.  143,  175.  They  bear  but  little 
resemblance  to  the  plan  finally  adopted.  Each  of  them  contemplated 
for  its  basis  the  "  all-power  "  of  the  states. 

The  "National"  Idea  repudiated.  —  And,  consistently  with  the 
above,  on  the  very  first  occasion  of  considering  this  matter,  the  follow- 
ing record  was  made  :  "  Wednesday,  June  20th  —  The  first  resolution 
of  the  report  of  the  committee  of  the  whole  being  before  the  house, 
Mr.  Ellsworth,  seconded  by  Mr.  Gorham,  moves  to  alter  it  so  as  to 
run  —  '  that  the  government  of  the  united  states  ought  to  consist  of 
a  supreme  legislative,  executive,  and  judiciary.'  This  alteration, 
he  said,  would  drop  the  word  '  national,'  and  retain  the  proper  title, 
'  the  united  states/  ...  He  wished  also  the  plan  to  go  forth  as  an 
amendment  of  the  articles  of  confederation.  .  .  .  The  motion  of  Mr. 
Ellsworth  was  acquiesced  in,  nem.  con.  The  second  resolution  —  '  that 
the  national  legislature  ought  to  consist  of  two  branches,'  being  taken 
up  —  the  word  '  national '  struck  out,  as  of  course."  [V.  Ell.  Deb. 
214.]  Nay,  more,  while  the  word  "national"  was  used  twenty-six 
times  in  the  aforesaid  resolutions,  it  was,  in  obedience  to  the  above- 
indicated  will  of  the  convention,  invariably  exchanged  for  "  united 
states,"  and  "  union  of  states ; "  so  that  finally  neither  the  word 
"  national  "  nor  the  idea  of  it  was  left  in  the  federal  plan. 

More  Anti-National  Facts.  —  The  expuuction  of  "national"  is 
merely  the  first  of  a  series  of  great  facts,  that  decisively  contradict 
and  refute  Story  and  Webster,  as  well  as  their  feebler  followers.  The 
2d  is,  that  on  the  18th  of  August,  1787,  the  nationalists  proposed  to 
invest  the  general  government  with  powers,  to  grant  charters  of  incor- 
poration, to  establish  a  university  and  seminaries,  to  promote  litera- 
ture, science,  and  arts,  to  encourage  useful  knowledge,  and  discoveries, 
by  premiums,  etc.,  to  establish  public  institutions,  rewards,  and  im- 
munities, for  the  promotion  of  agriculture,  commerce  and  manufac- 
tures, etc.  These,  and  others  proposed,  were  suited  to  a  national  or 
state  legislature,  but  not  a  federal  one  ;  and  the  convention  declined 
to  recommend  transferring  them  from  the  state  governments,  where 
they  already  were.1  [V.  Ell.  Deb.  440,  445,  446.] 

The  3d  great  anti-national  fact  is,  that  a  power  to  revise  or  negative 
state  laws  was  repeatedly  proposed,  and  as  often  overwhelmingly  de- 
feated. [Ibid.  174,  180,  321-2,  468-9.]  On  the  occasion  of  the  last 

1  If  all  powers,  except  those  expressly  delegated,  were  reserved  by  the  states,  the 
power  to  create  the  United  States  Bank,  or  Jay  Cooke's  National  Insurance  Company,  to 
say  nothing  of  other  corporations,  must  have  been  reserved  by  the  states,  for  no  such 
power  is  expressed  in  the  constitution.  And  as  this  power  was  proposed,  discussed,  and 
actually  excluded  from  the  constitution,  there  can  be  no  doubt  of  the  above  corporate 
bodies  being  the  offspring  of  usurpation  by  men  who  had  sworn  to  refrain  from  it ! 


MISSTATING  HISTORY  AND  RECORDS.  201 

proposal,  John  Rutledge  indignantly  exclaimed  :  "  If  nothing  else,  this 
alone  would  damn,  and  ought  to  damn,  the  constitution ; "  and  the 
convention,  by  vote,  refused  even  to  let  it  go  to  a  committee,  and  the 
proposition  was  withdrawn.  [Ibid.  468-9.  See  also  Appendix  C, 
No.  3.] 

The  4th  great  anti-national  fact  is  the  all-important  one,  that  the 
convention  absolutely  declined  to  give  the  general  government  even 
the  least  coercive  power  over  states,  and  all  the  fathers  spurned  the 
idea,  both  in  the  federal  and  state  conventions,  as  inconsistent  with 
the  plan,  and  tantamount  to  giving  the  power  to  wage  war  against  the 
states.  Mr.  Madison  said  the  idea  was  "  visionary  and  fallacious ; " 
Mr.  Hamilton  that  it  was  "  the  maddest  project  ever  devised  ;  "  and 
Ellsworth,  Randolph,  and  others,  spoke  of  it  as  preposterous,  in  the 
nature  of  war,  and  out  of  the  question.  This  subject  will  be  dealt  with 
hereafter.  Now  what  sort  of  a  national  government  is  that,  which  has 
no  coercive  power  over  the  constituents  of  the  nation  —  no  power  to 
hold  them  together,  and  no  power  to  negative,  or  even  revise,  state  laws  ] 
How  could  Mr.  Webster  permit  himself  to  say  that  the  constitution 
"  effectually  controlled  "  "  state  sovereignty  "  ?  And  we  must  note 
here,  that  the  states  made  three  amendments  to  forefend  this  very 
danger,  —  the  ninth  and  tenth  to  prevent  the  implying  of  powers  for 
state  control,  and  the  eleventh  to  guard  against  even  judicial  coercion 
of  states. 

The  Real  Preamble.  —  The  5th  great  anti-national  fact  is  one  that 
Dane,  Story,  Webster,  and  Curtis  must  have  deemed  too  important  for 
allusion  to,  let  alone  comment  on  ;  and  well  they  might,  for  it  crushes 
them,  and  their  little  imaginary  foothold  in  the  constitution.  The 
preamble  and  first  article,  unanimously  adopted  by  the  convention, 
for  the  proposed  compact,  were  as  follows:  "We,  the  people  of  the 
states  of  New  Hampshire,  Massachusetts,  Rhode  Island,  Connecticut, 
New  York,  New  Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia, 
North  Carolina,  South  Carolina,  and  Georgia,  do  ordain,  declare,  and 
establish  the  following  constitution  for  the  government  of  ourselves 
and  our  posterity.  [Article  L]  The  style  of  the  government  shall  be 
1  the  united  states  of  America/  "  etc.  [V.  Ell.  Deb.  376,  382.] 

But  the  whole  instrument,  after  being  agreed  upon  and  adopted, 
article  by  article,  was  placed  in  the  hands  of  a  committee  of  revision, 
who  reported  it  back  considerably  improved  in  mere  form.  As  to  the 
preamble,  the  generalization,  "  We,  the  people  of  the  united  states," 
was  substituted,  as  equivalent  to  the  specification  of  the  states. 
This  was  proper,  because  the  constitution  was  to  take  effect  when 
ratified  by  nine  states,  and  it  might,  if  the  states  were  named,  result 
that  some  would  be  designated,  though  not  in  the  union.  It  should 


202  FALLACIOUS  EXPOSITION. 

further  be  explained,  that  the  phrase  "  We,  the  people  "  was  used  in 
this  constitution,  because  the  previous  pact  had  been  ratified,  or  ac- 
ceded to,  by  the  state  governments  —  the  mere  creatures  of  the 
people ;  whereas,  in  this  case,  it  was  intended  to  connect  the  federal 
government  with,  and  base  it  directly  upon,  the  very  source  of  power 
—  the  sovereignty  itself;  making  thirteen  sovereignties,  as  Madison 
and  all  the  fathers  understood,  the  constitutors  of  the  new  pact  —  the 
constituents  or  principals  of  the  new  agency.  The  people  of  the 
states,  being  obliged  to  act  as  organizations,  and  according  to  the  law 
of  their  political  nature,  gave  separate  assents,  and  hence  the  new 
constitution  was  not  less  a  compact  than  the  old  one,  though  the 
powers  vested  by  it  in  the  government  created,  were  more  extensive. 
And  the  convention  accepted  the  revised  constitution  as  their  work, 
and  never  reconsidered  their  solemn  and  unanimous  approval  of  the 
phrase  —  "  We,  the  people  of  the  states."  Dane  and  Story  should 
have  known  this,  as  well  as  the  independent  ratifications  of  the  states, 
when  the  former  penned,  and  the  latter  quoted  approvingly,  the 
following,  in  reference  to  the  preamble  :  "  They  properly  said,  '  We, 
the  people  of  the  united  states '  do  ordain  and  establish ;  and  not 
'  We,  the  people  of  each  state.' " 

"  The  style  of  the  government  shall  be  the  united  states  of  America" 
Here  we  see  that  the  real  government  is  the  states  themselves,  the 
"general  government"  being  "the  government  of  [i.  e.  belonging  to] 
the  united  states,"  and  a  mere  agency.  These  states  were  republics, 
and  they  intended  to  keep,  and  not  cede,  political  sovereignty.  Their 
citizens  only,  and  not  themselves,  were  to  be  the  subjects  of  govern- 
ing power.  This  is  what  Madison  meant,  in  the  Virginia  ratifying 
convention,  by  the  phrase  "  a  government  of  a  federal  nature,  consist- 
ing of  many  coequal  sovereignties ;  "  and  what  Parsons  meant,  in  the 
Massachusetts  ratifying  convention,  by  saying,  "  the  people  divest  them- 
selves of  nothing"  when  they  delegate  powers  of  government ! 

The  6th  great  anti-national  fact  is,  that  the  entire  convention 
thought  they  had  formed  a  federal  plan,  because  in  their  unanimous 
letter,  reporting  the  constitution  to  congress,  they  spoke  of  it  as  "  the 
federal  government  of  these  states ; "  and  in  the  compact  itself,  they 
repeatedly  wrote  the  phrase — "the  united  states,"  and  "union  of 
states."  And  it  is  a  most  potent  fact,  that  Gouverneur  Morris,  one 
of  the  chief  consolidationists,  and  the  chairman  of  the  committee  on 
revision,  whose  pen  made  the  change  referred  to  above,  declared,  years 
afterwards,  that  "  the  constitution  is  a  compact  between  political  societies, 
.  .  .  each  enjoying  sovereign  potver"  [III.  Life  of  G.  Morris,  193.] 

Anti-national  Contemporaneous  Exposition.  —  But,  perhaps,  the 
most  important  fact  in  the  history  of  this  great  subject,  is  the  follow- 


MISSTATING  HISTORY  AND  RECORDS.  203 

ing,  that,  after  the  work  was  finished,  all  the  leading  fathers,  in  the 
state  conventions,  through  the  press,  and  before  the  people,  character- 
ized the  constitution  as  a  compact,  and  the  system  as  a  federation  of 
sovereign  states,  as  is  already  shown  in  Part  I.,  Chapter  VII. 

It  is  quite  certain,  then,  that  the  original  states,  and  the  fathers, 
intended  to  avoid  the  very  thing  these  expounders  predicated  of  the 
constitution,  viz.  —  a  consolidated  nation,  or  a  sovereign  national  gov- 
ernment ;  and  to  make  the  very  thing  these  men  deny,  viz.  —  a  federal 
union  of  states. 

Hamilton,  all  of  whose  views  and  wishes  were  in  favor  of  consolida- 
tion, was  forced  to  admit  that  his  plan  and  idea  had  been  rejected 
[V.  Ell.  Deb.  556],  and  that  the  system  was  "A  CONFEDERACY  OF 
STATES."  [II.  Ell.  Deb.  353.]  He  also  said  :  "  While  the  constitution 
continues  to  be  read,  and  its  principles  known,  the  states  must,  by 
every  rational  man,  be  considered  as  essential  component  parts  of  the 
'union.'"  [Ibid.  304.] 


CHAPTER  VIII. 

DANIEL  WEBSTER'S  MASTER-PIECE  OF  CRITICISM. 
INTERPRETATION  No.  12.  —  "  CONSTITUTIONAL  COMPACT." 

IN  1833,  John  C.  Calhoun  submitted  a  series  of  resolutions  to  the 
United  States  Senate,  the  first  of  which  declared,  "  that  the  people 
of  the  several  states  .  .  .  are  united  as  parties  to  a  constitutional 
compact,  to  which  the  people  of  each  state  acceded  as  a  separate 
sovereign  community." 

In  his  celebrated  reply,  Daniel  Webster  severely  inveighed  against 
Mr.  C.'s  use  of  the  words  "  compact"  and  "  accede,"  and  charged  him 
with  "  abandoning  the  use  of  constitutional  language  for  a  new  vocab- 
ulary." "  If,"  said  Mr.  W.,  "  nothing  was  done  but  acceding  to  a 
compact,  nothing  would  seem  necessary,  in  order  to  break  it  up,  but 
to  secede  from  the  same  compact.  .  .  .  This  is  the  reason  why  it  is 
necessary  to  give  new  names  to  things ;  to  speak  of  the  constitution, 
not  as  a  constitution,  but  as  a  compact ;  and  of  the  ratifications  by 
the  people,  not  as  ratifications,  but  as  acts  of  accession."  And  he 
repeatedly  made  the  assertion  that  "  there  is  no  language  in  the  whole 
constitution,  applicable  to  a  confederation  of  states." 

These  utterances  involve  the  absurd  assumption  that  all  language 
used,  in  devising,  discussing,  and  establishing  the  constitution,  by  the 
fathers  and  the  states,  which  they  did  not  also  use  in  the  instrument, 
is  unconstitutional,  as  well  as  improper  for  resolutions  and  arguments 
concerning  it. 

"  Compact "  and  "  accede  "  are  correct.  —  I  shall  now  proceed  to 
show  that  Mr.  C's  language  was  precisely  that  which  the  fathers  and  the 
states  habitually  used,  throughout  the  great  series  pf  discussions 
and  acts  attending  the  establishment  of  the  federal  system.  Nay, 
more,  I  shall  show  before  concluding,  that  Mr.  Calhoun's  resolution  ex- 
pressed the  most  studied  and  elaborate  vieivs  of  Mr.  Webster  himself  ! 

In  the  establishment  of  the  constitution,  the  acts  by  which  the  con- 
ventions expressed  the  wills  of  their  respective  states  were  described 
by  a  variety  of  words  and  phrases,  all  of  which  embodied  the  idea  of  a 
ratification  of  the  instrument  by  political  bodies.  Little  Delaware,  in 


WEBSTER'S  MASTER-PIECE  OF  CRITICISM.  205 

her  ordinance,  hitched  to  "the  constitution,"  a  tandem  of  four,  as 
follows  :  "  approve  of,  assent  to,  ratify,  and  confirm  the  said  constitu- 
tion." Besides  these,  the  states  and  the  fathers  used,  for  the  pur- 
pose of  expressing  the  same  act,  "join,"  "unite,"  "accept,"  "accede 
to,"  "affirm,"  "sanction,"  "agree  to,"  "  adopt,"  etc.  '  Of  these,  the 
word  "  ratify  "  was  used  in  all  the  ordinances,  probably  because  it  was 
the  technical  word  usually  employed  by  sovereigns  to  express  their 
sanction  of  treaties,  alliances,  leagues,  federations,  and  other  com- 
pacts. And  it  seems  to  be  the  word  best  fitted  to  signify  a  common- 
wealth's adoption  of  a  federal  pact,  while  it  does  not  even  hint  at  the 
assent  or  approval  of  mere  voting  persons.  The  theory  of  the  expound- 
ers really  is,  that  our  people,  in  provinces,  counties,  or  departments, 
adopted  the  "  national  constitution,"  just  as  the  French  elected  the 
President  for  life,  the  Emperor,  and,  more  recently,  the  plebiscite 
concerning  a  responsible  ministry.  They  seem,  however,  to  perceive 
but  dimly  that  their  theory  implies  a  like  despotic  authority  here, 
which  permits  the  expression,  and  provides  for  the  ascertainment  of 
the  popular  will  —  or  rather  wish. 

Any  fair  arguer  would  have  known  that  all  the  above  expressions 
conveyed  the  same  idea,  so  far  as  they  referred  to  the  giving  of  exist- 
ence and  authority  to  the  new  system.  It  was  plainly  impossible  for 
one  who  knew  the  facts,  not  to  see  that  the  states,  in  convention, 
made  a  proposal  to  each  state ;  each  assented  to  and  ratified  it ; 
thereby  it  became  the  "  federal  constitution,"  and  they  became  "  the 
united  states." 

But  Mr.  Webster  was  only  able  to  attack  the  aforesaid  resolution 
by  sophistry;  so  he  "criticised"  the  above  words,  seeming  not  to 
know  that  by  "  accede  "  Mr.  Calhoun  precisely  meant  ratify,  while 
by  "  compact "  he  precisely  meant  constitution ;  and  that  the  char- 
acter and  legal  effect  of  the  instrument  depended,  not  upon  what 
Mr.  Calhoun  or  anybody  else  called  it,  or,  indeed,  what  it  called  itself, 
but  upon  what  it  actually  was. 

He  ignored  Constitutional  History,  or  he  would  not  have  char- 
acterized the  above  words  as  "  unconstitutional  language,"  for  the 
fathers  and  the  states  habitually  used  compact  as  meaning  constitu- 
tion, and  accede  as  ratify,  as  will  now  be  shown.  [Italics  mine.] 

HAMILTON  wrote  to  Madison,  June  8,  1788  :  "God  grant  that  Vir- 
ginia may  accede"  He  wrote  to  Chipman,  of  Vermont,  July  22,  1788: 
"  The  accession  of  Vermont  to  the  confederacy  is  of  great  importance." 
And  in  a  subsequent  letter  he  speaks  of  Vermont's  "  accession  to  the 
union,"  and  her  becoming  a  member  of  the  confederacy.  In  Article  85 
of  the  Federalist,  he  characterizes  the  association  of  states  as  a  con- 
federacy ;  calls  the  constitution  a  compact ;  and  says  that  "  thirteen 


206  FALLACIOUS  EXPOSITION. 

independent  states  "  are  "  the  parties  to  the  compact ."  In  the  ratifying 
convention  of  New  York,  he  says  the  new  system  is  "  a  confederacy  of 
states  !  "  [II.  Ell.  Deb.  353.] 

MADISON,  in  the  Virginia  ratifying  convention,  characterized  the 
new  plan  as  "a  government  of a  federal  nature,  consisting  of  many  co- 
equal sovereignties."  This  is  his  key-note,  and  many  passages  contain- 
ing the  words  "compact"  and  "accession"  could  be  produced.  One 
will  suffice:  "Suppose,"  said  he,  "eight  states  should  ratify,  and 
Virginia  should  propose  certain  alterations  as  the  previous  condition 
of  her  accession:1  [III.  Ell.  Deb.  618.] 

JOHN  JAY  wrote  to  Washington  in  June,  1788  :  "The  accession  of 
New  Hampshire  does  good,  and  that  of  Virginia  would  do  more."  So 
we  see  that  all  "  the  writers  of  the  Federalist,"  not  only  recognized  the 
states,  instead  of  the  nation,  as  the  actors  in  establishing  the  consti- 
tution, but  they,  like  Calhoun,  "  abandoned  the  use  of  constitutional 
language  for  a  new  vocabulary." 

WASHINGTON,  in  a  letter  to  David  Stuart,  of  Oct.  17,  1787,  spoke 
of  the  new  constitution  as  a  "  compact  or  treaty"  and  said  that  among 
the  states,  "  there  must  be  reciprocity  or  no  union." 

To  Bushrod  Washington,  he  writes,  Nov.  10,  1787:  "Is  it  best 
for  the  states  to  unite  ?  ...  If  the  union  of  the  whole  is  a  desirable 
object,  the  component  parts  must  yield  a  little,  in  order  to  accomplish 
it."  He  then  asks  what  the  opponents  in  Virginia  would  do,  "  if  nine 
other  states  should  accede  to  the  constitution/' 

Writing  to  Madison,  Dec.  7,  1787,  he  speaks  of  "  the  states  acceding 
to  the  federal  government,"  etc.  To  the  same,  January  10,  1788,  he 
says  :  "  Nine  states  will  have  acceded  to  it." 

To  Gen.  Knox,  June  17,  1788,  he  speaks  of  "the  accession  of  South 
Carolina,"  and  hopes  "  that  the  states  which  may  be  disposed  to  make 
a  secession,  will  think  often  and  seriously  on  the  consequences." 

To  Marquis  de  Lafayette,  June  17,  1788,  he  speaks  of  "the 
accession  of  Maryland  to  the  proposed  government,"  and  says,  "  the 
accession  of  one  state  more,  will  complete  the  number  needed  to  estab- 
lish it." 

To  Gen.  Pinckney  he  wrote  on  June  28,  1788,  that  "New  Hamp- 
shire had,  on  the  21st  instant,  acceded  to  the  new  confederacy,  by  a 
majority  [in  her  convention]  of  eleven  voices."  To  John  Jay,  July 
18,  1788,  he  speaks  of  "the  accession  of  ten  states ;"  and  July  20, 
1788,  to  Sir  Edward  Newenham,  of  the  states  "  having  formed  a  con- 
federated government." 

Writing  to  Gouverneur  Morris,  in  1789,  he  hopes  "the  non-acceding 
states  will  very  soon  become  members  of  the  union." 

And  on  July  1,  1790,  he  writes  to  Count  de  Segur  :  "  The  union  of 


WEBSTER'S  MASTER-PIECE  OF  CRITICISM.  207 

states  is  now  complete  under  the  new  government,  by  the  late  accession 
of  Rhode  Island  to  the  constitution."  [All  these  extracts  are  to  be 
found  in  Vol.  IX.,  Writings  of  Washington.] 

The  following  extract  from  a  letter  from  Washington  to  the  Earl  of 
Buchan,  dated  April  22,  1793,  — first  published  in  the  London  Auto- 
graphic Mirror,  in  1865,  —  shows  his  federal  idea  or  conception  at  that 
date  to  be  unchanged  :  "  I  send  you  the  plan  of  a  new  city  about  the 
centre  of  the  union  of  these  states" 

FRANKLIN  could  be  quoted  extensively  to  the  same  effect.  A  sin- 
gle quotation  will  suffice.  He  wrote  on  Nov.  5,  1789  :  "Our  new 
constitution  is  now  established  with  eleven  states,  and  the  accession  of  a 
twelfth  is  soon  expected." 

Governor  Randolph,  Judge  Parsons,  Chancellor  Livingston,  Samuel 
Adams,  James  Wilson,  and  many  others,  could  be  quoted  to  the  same 
effect.  A  single  expression  of  the  first  named,  in  the  Virginia  conven- 
tion, will  suffice  :  "  Were  I  convinced  that  the  accession  of  eight  states 
did  not  render  our  accession  also  necessary  to  preserve  the  union,  I 
would  not  accede  to  it,  till  it  should  be  previously  amended."  [III. 
Ell.  Deb.  67.] 

Neither  Disputant  knew  the  Facts  of  the  Case.  —  Mr.  Webster 
and  Mr.  Calhoun  seem  to  have  been  about  equally  well-informed  in 
constitutional  history.  In  the  rejoinder  of  the  former  to  the  latter, 
in  1833,  he  said  :  "The  gentleman  also  attempts  to  find  an  authority 
for  his  use  of  the  word  '  accede.'  "  He  then  went  on  to  admit  that  Gen. 
Washington  used  it,  as  did  his  biographer.  But,  said  he,  it  was  in 
regard  to  North  Carolina's  ratification  ;  as  the  old  union  was  broken 
up,  and  the  new  one  already  formed,  "  there  was  propriety,  perhaps, 
in  calling  her  adoption  an  accession." 

The  above  extracts  indicate  the  effective  reply  Mr.  C.  could  have 
made.  Besides  beating  his  Titanic  adversary  in  argument,  and  con- 
vincing the  learned,  he  might  have  crushed  him  with  mountains,  and 
convinced  the  world  !  Mr.  Webster's  arguments  were  made  mainly 
of  assertions  of  fact,  all  of  which  could,  then  and  there,  have  been 
proved  to  be  unfounded  ! 

In  fine,  all  the  fathers  preferred  the  "  new  vocabulary,"  and  were 
quite  ignorant  of  the  alleged  fact,  that  there  was  "  no  language  in  the 
whole  constitution  applicable  to  a  confederation  of  states." 

Mr.  Webster's  Views  late  in  Life.  —  As  Mr.  Webster  was  an 
American  politician,  like  most  of  the  class,  he  could  act  the  pendulum. 
Having  done  ample  justice  to  his  consolidation  swing,  I  will  show  his 
federal  oscillations.  [The  italics  are  my  own.] 

He  wrote  to  Col.  William  Hickey,  Dec.  11,  1850,  that  "the  con- 
stitution is  the  bond,  and  the  only  bond  of  the  union  of  these  states.  It 


208  FALLACIOUS  EXPOSITION. 

is  all  that  gives  us  a  national  character."  ["The  Constitution,"  p.  xxii.] 
This  expresses  precisely  the  idea  of  Calhoun,  and  is  the  exact  opposite 
of  Mr.  Webster's  assertion  in  1833,  that  the  constitution  is  the  union 
of  the  people,  and  not  a  union  of  states  ! 

He  wrote  to  Mark  Cooper,  of  Georgia,  in  1851  :  "The  states  are 
united,  confederated,  not  '  chaos-like,  together  crushed  and  bruised.' " 

"  The  states  are  united,  confederated."  All  the  fathers,  and  the 
constitution,  speak  of  "  the  union  of  states  "  —  "  the  united  states." 
These  expressions,  with  their  habitual  use  of  federal  (and  its  cognates 
from  the  same  root,  fcedus)  make  it  impossible  that  they  should  have 
intended  anything  else  by  the  constitution,  than  a  league  "  between 
the  states  ratifying  the  same."  This  was  unquestionably  Webster's 
meaning.  "  The  states  are  united,  CONFEDERATED." 

In  1851,  to  the  young  men  of  Albany,  he  said  :  "  .  .  .  here  is  the 
constitutional  compact  nevertheless  still  binding ;  .  .  .  when  called 
upon  to  fulfil  a  compact,  the  question  is,  will  you  fulfil  it  It  I,  for  one 
am  ready."  Again  he  speaks  of  "  the  compact  of  the  constitution." 
being  a  "  fair  "  one. 

At  Capon  Springs,  Va.,  in  June,  1851,  he  said  the  following  :  "  How 
absurd  it  is  to  suppose  that  when  different  parties  enter  in  a  compact 
for  certain  purposes,  either  can  disregard  any  one  provision,  and  ex- 
pect, nevertheless,  the  other  to  observe  the  rest.  ...  If  the  Northern 
states  refuse  wilfully  and  deliberately  to  carry  into  effect  "  one  "  part 
of  the  constitution,  .  .  .  and  congress  provides  no  remedy,  the 
South  would  be  no  longer  bound  to  observe  the  compact.  A  bargain 
cannot  be  broken  on  one  side,  and  still  bind  the  other  side." 

So  we  see  that  Mr.  Webster  himself  put  the  "  new  vocabulary  "  in 
requisition,  even  using  the  phrase  "  constitutional  compact,"  which  he 
so  chided  Mr.  Calhoun  about. 

Attempts  to  explain.  —  In  the  above  extract  from  his  speech  at 
Capon  Springs,  by  the  phrase  "  different  parties,"  Mr.  Webster  must 
have  meant  "  states,"  and  by  "  certain  purposes,"  he  could  but  mean 
the  reasons  for  which  they  federated,  the  "parties  "  and  "purposes" 
which  the  constitution  in  fact  exhibits.  It  is  quite  presumable,  too, 
that  when  he  used  "compact,"  he  meant  one  of  "the  compacts 
which,"  Hamilton  said  [in  Fed.  85],  were  "  to  embrace  thirteen  dis- 
tinct states  in  a  common  bond  of  amity  and  union."  Nay,  more,  the 
presumption  from  this  very  extract  is,  that  he  agreed  with  Hamilton's 
assertion  in  the  same  article  that  "thirteen  independent  states  are 
.  .  .  the  parties  to  the  compact." 

Mr.  Curtis,  like  Mr.  Webster,  has  attempted  to  explain  the  phrase 
"constitutional  compact"  consistently  with  the  theory  of  1830-3. 
He  was,  said  Mr.  Curtis,  "  speaking  of  a  particular  clause  in  the  con- 


WEBSTER'S  MASTER-PIECE  OF  CRITICISM.  209 

stitution  ...  as  founded  in  a  compact  between  different  classes  of  the 
states,"  etc.  The  fallacy  of  this  hardly  needs  exposure.  1st,  the  "  par- 
ties "  of  the  constitution  are  "  states,"  and  not  "  classes  of  states,"  or 
"  sections/'  or  "  the  North  and  South."  2d,  there  is  no  history  of 
such  "  parties  "  as  the  latter  having  existed,  negotiated,  deliberated 
upon,  much  less  established,  "  compacts."  3d,  it  is  descending  to 
the  ridiculous  to  suppose  that  such  "  parties  "  agreed  upon  represen- 
tation, taxes,  coinage,  regulating  commerce,  etc.,  and  that  the 
nation  then  proceeded  to  make  an  imperial  or  "  supreme  law,"  em- 
bodying such  agreements,  and  binding  such  "  classes  of  states  "  and 
"  sections "  indissolubly  to  observe  them.  4th,  the  phrase,  "  the 
Northern  States,"  in  the  above  extract,  destroys  Mr.  C.'s  assump- 
tion. 5th,  it  is  a  mere  solecism  to  say  the  constitution  is  founded 
in  compact,  while  it  is  not  itself  a  compact.  It  is  both  a  compact  and 
a  constitution  of  federal  government. 

Mr.  Webster's  Real  Views.  —  These  are  most  likely  to  be  found, 
not  in  editions  of  his  works,  or  in  biographies  prepared  by  interested 
persons,  but  in  the  studied  and  elaborate  memorial  to  congress  on  the 
Missouri  question,  which  he  and  others  were  elected  by  the  inhabitants 
of  Boston  to  prepare*,  and  which  they  reported  on  Dec.  15,  1819. 
[See  Appendix  F.]  Mr.  Webster  was  then  in  his  prime.  He  had 
been  elected  to  congress  from  New  Hampshire  six  years  before,  had 
distinguished  himself,  had  doubtless  thoroughly  studied  our  polity 
and  its  history ;  and  he  seems  to  have  been  the  chairman  of  the 
committee. 

They  present  the  memorial  in  the  following  manner  :  — 

"  The  committee  appointed  by  a  vote  of  the  meeting,  .  .  .  submit  the  fol- 
lowing :  — 

DANIEL  WEBSTER, 
GEORGE  BLAKE, 
JOSIAH  QUINCY, 
JAMES  T.  AUSTIN, 

JOHN  GALLISON. 
"  BOSTON,  Dec.  15,  1819." 

In  this  memorial,  Mr.  Webster  calls  the  united  states  "  the  Ameri- 
can confederacy ! "  and  the  following  are  some  of  the  most  remarkable 
passages.  The  constitution  provides  that  "  '  new  states  may  be  ad- 
mitted into  the  union.'  The  only  parties  to  the  constitution,  contem- 
plated by  it  originally,  were  the  thirteen  confederated  states" 

Objecting  to  an  extension  of  "  inequality  of  representation,  which 
already  exists  in  regard  to  the  original  states,"  he  proceeds  to  say : 
"  As  between  the  original  states,  the  representation  rests  on  compact 
and  plighted  faith,  and  your  memorialists  have  no  wish  that  that 

14 


210  FALLACIOUS  EXPOSITION. 

compact  should  be  disturbed,  or  that  plighted  faith  in  the  slightest 
degree  violated.  But  the  subject  assumes  an  entirely  different  char- 
acter when  a  new  state  proposes  to  be  admitted.  With  her  there  is 
no  compact  and  no  faith  plighted"  [The  italics  are  mine.] 

And  he  argues  throughout  on  the  assumption  that  a  new  state 
comes  into  the  union  by  compact  with  the  states  already  associated  — 
these  being  represented  by  their  congress.  Nay,  more,  he  declares 
that  the  states  in  the  union  have,  individually,  "  the  exclusive  posses- 
sion of  sovereignty."  In  reference  to  the  formation  of  Kentucky  and 
Maine,  from  the  territories  respectively  of  Virginia  and  Massachusetts, 
he  says :  "  No  person  has  ever  doubted  that  any  state,  in  acceding  to 
a  division  of  its  territory,  and  the  formation  of  a  new  state,  has  always 
possessed  the  right  to  impose  its  own  terms  and  conditions,  as  a  part 
of  the  grant.  The  ground  of  this  right  is  the  exclusive  possession  of 
sovereignty,"  etc. 

I  will  close  the  evidence  of  Mr.  Webster's  real  views  with  three 
remarkable  extracts,  which  need  no  comment,  and  are  absolutely 
inconsistent  with  any  subordination  of  the  commonwealths  or  re- 
publics of  America,  to  their  agencies  of  government,  or  to  that  formless 
myth  called  the  nation. 

"  No  such  thing  is  known  in  North  America  "  as  "  the  sovereignty 
of  government."  [Speech  of  1833.] 

"  Until  the  constitution  was  ratified  by  nine  states,  it  was  but  a 
proposal,  the  mere  draft  of  an  instrument.  It  was  like  a  deed  drawn, 
but  not  executed ;  ...  it  was  inoperative  paper ;  ...  it  had  no  au- 
thority ;  it  spoke  no  language."  [Ibid.] 

"  It  never  entered  into  their  conceptions  that  they  were  to  consoli- 
date themselves  into  one  government,  that  they  were  to  cease  to  be 
Maryland  and  Virginia,  Massachusetts  and  Carolina.  ...  The  objects 
of  the  common  defence  and  the  general  welfare,  and  afterwards  the 
objects  connected  with  commerce  and  revenue,  .  .  .  were  all  they 
adopted  as  principles  and  objects  of  union  and  association,  nothing 
beyond  that.  .  .  .  Gentlemen,  I  hope  for  one  never  to  see  the  original 
idea  departed  from."  [Speech  at  Annapolis,  1852.] 

There  can  be  no  doubt  that  these  were  and  remained  Mr.  Webster's 
real  ideas ;  for  Massachusetts  had  prohibited  him,  and  all  her  officers 
and  citizens  forever,  from  having  any  opinion  on  the  subject.  She 
then  declared  in  her  constitution  (as  she  does  now)  that  "the  people 
of  this  commonwealth  have  the  sole  and  exclusive  right  of  governing 
themselves  as  a  free,  sovereign,  and  independent  state,  and  do  and 
forever  hereafter  shall,  exercise  and  enjoy  every  power,  etc.,  which  is 
not  ...  by  them  expressly  delegated  to  the  united  states." 

"  By  them  delegated  !  "     Why,  here  is  absolute  proof  that  Massa- 


WEBSTEK'S  MASTER-PIECE  OF  CRITICISM.  211 

chusetts  is  sovereign  over  the  federal  government !  Mr.  Webster's 
"  opinion  about  the  sovereignty  of  a  state,"  indeed  !  Why,  We  could 
not  have  been  her  servant,  if  he  had  dared  to  opine  on  a  question  his 
sovereign  had  settled.  "  The  Old  Bay  State  "  was  ever  the  stickler, 
par  excellence,  for  absolute  sovereignty  of  a  state,  and  she  was  right. 
[See  also  constitutions  of  N.  H.,  N.  Y.,  and  others.] 

Now,  in  view  of  Mr.  Webster's  early  and  elaborate  statements,  and 
the  consistent  ones  just  quoted,  made  near  the  close  of  his  life,  and 
especially  the  Albany,  Capon  Springs,  and  Annapolis  speeches,  and  the 
Cooper  and  Hickey  letters,  have  I  not  shown,  as  I  undertook  to  do, 
that  Mr.  Calhoun's  resolution  expressed  the  most  studied  and  elabo- 
rate views  of  Mr.  Webster  himself  ?  Might  not  the  latter,  consist- 
ently, truthfully,  and  properly,  have  submitted  the  said  resolution  to 
the  United  States  Senate  1  Here  it  is  :  — 

"  Resolved,  that  the  people  of  the  several  states,  composing  these 
United  States,  are  united  as  parties  to  a  constitutional  compact,  to 
which  the  people  of  each  state  acceded  as  a  separate  sovereign  com- 
munity, each  binding  itself  by  its  own  particular  ratification;  and 
that  the  union,  of  which  the  said  compact  is  a  bond,  is  a  union  be- 
tween the  states  ratifying  the  same." 

Mr.  Webster,  in  his  speech  of  1833,  said  :  "  Where  sovereign  com- 
munities are  parties,  there  is  no  essential  difference  between  a  com- 
pact, a  confederation,  and  a  league.  They  all  equally  rest  on  the 
plighted  faith  of  the  sovereign  party.  A  league  or  confederacy  is  but 
a  subsisting  or  continuing  treaty." 

In  giving  this,  and  many  other  definitions  as  a  publicist,  statesman, 
or  lawyer,  Mr.  Webster  seems  to  forget  that  to  sustain  our  position, 
we  simply  fill  up  his  definitions  with  facts,  just  as  lawyers  prove  the 
ingredients  of  murder,  larceny,  or  other  crime.  In  this  instance,  all 
the  facts  of  history,  as  well  as  his  own  admissions,  decisively  prove 
the  "league  or  confederacy." 

Why  was  He  on  both  Sides  ?  —  Webster's  views  last  exhibited, 
were  popular  in  Massachusetts  previous  to  1830.  They  suited  her 
interests.  Indeed,  during  the  era  of  good  feeling,  viz.,  in  1825,  Mr. 
Jefferson  and  Mr.  Everett  agreed  that  "  the  constitution  of  the  united 
states  was  a  compact  between  independent  nations  ; "  and,  as  we  have 
seen,  Mr.  Webster  and  Mr.  Calhoun  were  in  "sweet  communion 
joined."  But  in  1830-33  Massachusetts  had  vast  interests  staked  in 
tariffs,  navigation  laws,  fishing  bounties,  etc.,  which  could  be  pro- 
moted by  judicial  opinions,  commentaries  and  expoundings  in  favor 
of  a  nation.  Naturally  she  then  desired  an  advocate  to  controvert 
the  following  of  Mr.  Webster's  own  propositions,  viz.,  that  "  the  only 
parties  to  the  constitution  contemplated  by  it  originally,  were  the 


212 


FALLACIOUS  EXPOSITION. 


thirteen  confederated  states ; "  that  the  provisions  of  the  said  consti- 
tution "  rest  on  compact  and  plighted  faith ; "  and  that  the  state  in 
the  union  has  "  the  exclusive  possession  of  sovereignty."  Did  not 
Webster  accept  employment,  and  act  as  an  advocate  1 

It  almost  seems  as  if  there  were  in  American  history  two  Daniel 
Websters  —  one  a  statesman  and  jurisconsult,  and  the  other  a  poli- 
tician and  advocate.  One  seems  genuine,  and  the  other  counterfeit. 
The  former,  only,  dwelt  in,  and  breathed  the  pure  atmosphere  of 
truth.  Perhaps  it  were  better  to  say  that  the  early  stream  of  this 
great  life  descended,  and,  like  an  underground  river,  ran  for  years 
beneath  the  material  interests  and  selfishness  of  his  commonwealth, 
but  finally  flashed  out  and  sparkled  on  to  the  ocean,  reflecting  the 
truth-beams  of  Heaven ! 


CHAPTER  IX. 

LINCOLN'S  PLAIN  ENGLISH. 

THE  foregoing  interpretations  produced  irrepressible  conflict, 
Lincoln  and  war  !  The  doctrines  of  Dane,  Story,  Webster  and 
others  (taught,  as  I  have  shown,  by  the  original  enemies  of  the  con- 
stitution, to  prevent  its  adoption)  produced,  as  George  T.  Curtis 
correctly  asserts,  "  that  body  of  public  convictions  "  which  moved  and 
enabled  one  part  of  the  states,  by  the  use  of  the  governmental 
agency  of  all,  to  subjugate  the  rest.  Conceding  here,  once  for  all,  that 
under  the  jus  gentium,  the  former  had  as  good  a  right  to  coerce,  as  the 
latter  to  secede,  I  pass  on. 

One  of  these  "  public  convictions  "  was  that  the  constitution  was 
a  law  upon  states,  and  not  a  compact  between  or  among  them ;  and  it 
was  this  which  made  peace  impossible  in  1861.  The  successful  party 
naturally  said  :  "  The  constitution  is  the  supreme  law,  and  we  are 
elected  by  the  nation,  to  be  the  government ;  and  to  enforce  the  said 
law  with  the  army  and  navy  if  necessary ;  and  if  states  exercise 
judgment  and  will  contrary  to  ours,  in  any  affair,  we  must  treat  them 
as  counties  in  rebellion.  Power  is  given  to  us,  by  the  nation,  to  rule 
them,  and  we  are  the  final  judges  of  the  extent  of  that  power. " 

"  Subjugate "  the  states,  I  say,  for  all  are  subjugated,  though  of 
course  the  tame  and  obedient  ones  are  not  yet  dealt  with.  By  1866, 
such  progress  had  been  made  toward  depotism,  that  the  conservative 
convention,  held  at  Philadelphia,  declared  "  the  government  "  to  have 
"  absolute  supremacy  !  "  and  the  states  to  be  in  "  allegiance  "  to  it !  ! 
The  personnel  of  "  the  government "  has  become  a  corporate  despot, 
wielding  the  stupendous  enginery  of  imperialism  over  an  empire  of 
provinces.  President  Grant,  standing  near  the  close  of  his  adminis- 
tration, and  viewing  the  result  of  the  war,  of  reconstruction,  and  of  his 
own  agency  in  shackling  and  coercing  states,  exclaimed,  "What  we 
have  done  in  Louisiana  and  Arkansas,  we  will  do  in  New  York,  Illi- 
nois, and  Missouri,  when  necessary."  Meanwhile,  here,  there,  and 
yonder,  all  over  the  land,  imperial  acts  were  done,  and  significant 
emblems  of  central  sovereignty  set  up  —  each  with  all  the  meaning 
of  the  cap  of  Gesler  in  the  market-place  of  Altorf ! 


214  FALLACIOUS  EXPOSITION. 

The  truth  is,  the  change  in  the  government,  from  agency  to  sove- 
reignty, is  come,  and  is  now  hardening  down  upon  us,  which,  as  Burke 
says,  has  heretofore  "  perverted  from  their  purposes"  "  all  the  free  mag- 
istracies of  the  world." 

Let  us  now  cursorily  review  the  new  doctrine,  and  see  how  it  ap- 
pears dressed  up  in 

President  Lincoln's  Plain  English.  —  It  is  much  to  be  regretted 
that  the  expounders  did  not,  in  the  great  era  of  perversion  — 1830-33 
—  link  on  to  their  logical  chain  those  candid  and  startling,  but  legiti- 
mate conclusions,  afterwards  stated  with  pen  and  sword  by  the  late 
Abraham  Lincoln  as  President ;  for  such  unfounded  notions  would  then 
have  been  derided,  and  the  utterers  steadily  prevented  from  exercis- 
ing public  functions. 

We  are  sometimes  startled,  as  well  as  amused,  to  see  how  poetry 
and  oratory  become  nonsense  and  absurdity  upon  being  put  in  plain 
English.  Many  a  Lincoln  has  proved  his  own  honesty  and  simplicity, 
while  exhibiting  his  teacher  as  a  mere  sophist,  or  falsifier. 

In  1861,  after  being  elected  to  the  presidency,  Mr.  Lincoln  in  a 
speech  in  Indiana,  and  in  his  inaugural  address,  said  and  assumed 
that  the  states  are  but  counties,  without  sovereignty,  and  that  the  gov- 
ernment is  sovereign,  and  can  rightfully  coerce  the  states  to  obey  it. 
In  his  extra-session  message  of  the  same  year,  he  said  :  "  The  states 
have  their  status  in  the  union,  and  they  have  no  other  legal  status. 
.  .  .  The  union  is  older  than  any  of  the  states,  and,  in  fact,  it  created 
them  as  states.  Originally,  some  dependent  colonies  made  the  union, 
and,  in  turn,  the  union  threw  off  their  old  dependence  for  them,  and 
made  them  states  such  as  they  are."  "  Our  states  have  neither  more 
nor  less  power  than  that  reserved  to  them  in  the  union,  by  the  con- 
stitution, no  one  of  them  ever  having  been  a  state  out  of  the 
union." 

The  deluded  man  had  read  Mansfield's  Political  Grammar,  Webster's 
two  great  speeches,  Jackson's  Proclamation,  and  —  to  graduate  on  — 
Story's  Commentaries,  taking  it  for  granted  that  these  authors  were 
correct ;  and  not  knowing  that  their  peculiar  expositions  were  falla- 
cious, and  were,  moreover,  identical  with  the  charges  originally  made 
against  the  constitution,  by  its  foes  ;  and  that  it  was  only  because  the 
said  charges  were  most  signally  refuted  by  the  advocates  of  the  con- 
stitution, that  the  American  commonwealths  adopted  it. 

Justice  to  Mr.  Lincoln. —  It  seems  proper  to  say  that  after  his 
nomination,  he  had  no  time  —  even  if  he  had  been  competent  —  to 
investigate  for  himself,  and  deduce  correct  conclusions.  Moreover,  the 
dogmas  and  arguments  of  Dane,  Story,  Webster,  and  Jackson  were 
the  platform,  nay,  the  very  soul,  of  his  party.  Confiding  in  the  honor 


LINCOLN'S  PLAIN  ENGLISH.  215 

of  these  expounders,  he  unqualifiedly  accepted  their  treasonable  per- 
versions, and  they,  more  than  he,  are  responsible  for  the  bloody  con- 
sequences. From  their  premises  and  arguments,  he  concluded  that 
coercion  of  states  was  constitutional  and  proper. 

It  is  evident  that  he  was  "  more  sinned  against  than  sinning."  He 
was  a  person  of  fair  intellect,  slight  education,  limited  knowledge,  no 
research,  kind  heart,  jocular  disposition,  a  man,  in  short,  of  excellent 
nature  —  a  strange  mixture  of  simplicity  and  shrewdness — just  the 
man  with  his  inexperience  in  statesmanship,  and  his  vague  and  hazy 
notions  of  political  ethics  and  constitutional  history  and  law,  to  Be 
misled  by  the  sophists  of  his  party,  and  to  be  the  instrument  of 
crafty  and  unscrupulous  politicians.  He  was  not  a  man  to  contrive 
wickedness  —  to  wilfully  subvert  the  constitution,  and  to  build  his 
greatness  on  his  country's  ruin,  but  he  could  be  moved,  by  various 
plausible  and  delusive  pleas  and  pretexts,  to  do  what  he  would  have 
shrunk  from  with  horror,  had  he  understood  the  designs,  pr  seen  the 
hearts  of  the  movers. 

At  all  events,  upon  the  ground  indicated  by  the  above  extracts,  the 
Southern  states  were  coerced,  vi  et  armis,  for  four  years ;  and,  at  last, 
brought  to  writhe  under  the  heel  of  federal  military  power ! 

At  first,  Lincoln's  above-quoted  dicta  sounded  like  a  huge  joke  ; 
which  was  laughed  at,  till  army  after  army  from  the  "  Northern  hive  " 
marched  down  to  perpetrate  it  upon  the  South ;  whereat  the  laugh 
changed,  for  the  joke  was  the  fiat  of  an  irresistible  mob,  that  had  be- 
come a  great  party,  and  for  many  years  had  fanatically  surged  like 
the  many-voiced  sea  against  the  barriers  of  the  constitution. 

In  glancing  at  some  of  this  unfortunate  man's  conclusions  from  the 
assertions  and  arguments  of  his  aforesaid  teachers,  we  shall  see  that 
derision  would  be  the  fittest  notice,  but  for  the  abhorrent  conse- 
quences. Acting  upon  their  doctrines,  he  made  the  land  dark  with 
death  and  mourning.  But  his  guilt,  to  that  of  his  teachers,  morally, 
is  as  much  less,  as  homicide  by  misadventure  is  less  than  that  with 
malice  prepense. 

States  and  Counties  politically  equal !  —  "  Suppose"  said  he,  "  a 
state  "  and  "  a  county"  are  "  equal  in  territory  and  inhabitants,  in  what 
on  principle  is  a  state  better  than  a  county  ?  Would  an  exchange  of 
names  be  an  exchange  of  rights  ?  " 

Common  sense,  if  present,  would  have  answered  :  All  the  original 
states  declared  themselves  to  be  separately  "  sovereign,  free,  and  inde- 
pendent," at  the  moment  of  making,  and  up  to  the  finishing  of,  the 
federal  constitution ;  and  it  was  in  this  character  that  they  made 
and  finished  it.  No  county  ever  had  such  a  character.  Again,  the 
states  were  named  in  the  constitution,  as  the  parties  and  actors  of  the 


216  FALLACIOUS  EXPOSITION. 

system.  The  counties  were  not  mentioned.  Again,  each  and  every 
state,  old  and  new,  has  now,  as  part  of  her  constitution,  or  rather  her 
declaration  of  rights,  that  "  all  political  power  is  inherent  "  in  her  peo- 
ple, or  equivalent  words,  while  a  county  is  a  mere  subdivision  of  such 
state,  incorporated  by  her,  with  mere  municipal  powers,  and  repealable 
at  will.  The  former  is  the  creator,  and  the  latter  her  creation.  And 
finally,  the  states  ratified  and  ordained  the  federal  constitution  of  gov- 
ernment. No  county  ever  acted  in  the  premises,  or  could  do  so  ! 

A  state  and  a  county  equal,  indeed ! 

No  doubt  he  honestly  thought  his  teachers  said  so. 

Sovereignty,  if  not  asserted,  is  lost.  —  "Much  is  said  about  the 
'  sovereignty  '  of  the  states,  but  the  word  even,  is  not  in  the  national  consti- 
tution ;  nor,  as  is  believed,  in  any  of  the  state  constitutions.  .  .  .  No  one 
of  our  states,  except  Texas,  ever  was  a  sovereignty" 

This  extract  amounts  to  a  mere  guess,  and  is  untrue  and  absurd, 
except  as  to  the  trivial  fact  that  the  word  "  sovereignty  "  is  not  in 
the  federal  instrument. 

A  little  reflection  would  have  shown  Mr.  Lincoln  that  the  word 
need  not  be  used,  if  the  thing  is  in  the  states ;  and  that  this  question 
is  one  of  fact,  which  was  settled  by  the  solemn  declaration  of  all, 
that  "  each  state  retains  her  sovereignty"  This  declaration  proves  that 
the  fact  existed. 

This  sovereign  will  of  each  state  —  thus  declared  by  all  —  existed 
and  acted,  until  the  "  federating  anew  "  was  done  ;  that  is  to  say,  until 
"  a  more  perfect  union  "  of  the  states,  than  the  previous  one,  was  formed  ; 
until  the  functionaries  of  the  new  government  were  elected ;  until  they 
organized  and  went  to  work  ;  and  until  the  people,  as  persons,  yielded 
consent  and  habitual  obedience  to  the  new  system. 

That  the  people,  as  sovereign  commonwealths,  began  to  make  and 
impose  upon  the  people,  as  persons,  a  government,  no  one  will  deny. 
How  absurd  it  was  to  do  so,  if  they  had  no  right  to  go  through,  and 
coerce  obedience.  It  is  beyond  question  that  they  acted  with  sove- 
reign will,  and  "  ordained  and  established  ;"  and  we  look  in  vain  along 
the  course  of  time  and  history,  for  any  change  in  that  sovereign  will, 
and  for  involuntariness  of  union  ;  until  we  come  sadly  to  contemplate 
Lincoln  and  war  ! 

Many  thoughtless  people  think  that  the  "  powers  "  of  declaring  war, 
making  treaties,  coining  money,  levying  taxes,  etc-.,  are  sovereignty ; 
but  these  are  simply  u  powers "  or  authorities,  delegated  by  each 
state,  by  virtue  of  its  sovereignty,  to  the  united  states,  and  are  in  no 
sense  sovereignty,  this  being,  as  Daniel  Webster  said,  never  in  the  gov- 
ernment, but  always  in  the  people  —  these  as  commonwealths,  and 
without  any  change  whatever,  being  THE  SELF-UNITED  STATES. 


LINCOLN'S  PLAIN  ENGLISH.  217 

As  I  have  heretofore  shown,  New  York,  Massachusetts  and  New 
Hampshire,  in  their  constitutions,  declare  their  sovereignty,  eo  nomine  ; 
and  equivalent  declarations  are  made  by  all  the  states,  including  Mr. 
Lincoln's  own  state  of  Illinois,  which,  with  all  the  other  Northwestern 
ones,  were,  according  to  the  express  stipulation  of  the  treaty  of  cession 
by  Virginia  to  the  united  states,  to  be  admitted  into  the  union,  with 
"  the  same  rights  of  sovereignty,  freedom  and  independence  with  the 
other  states  ; "  and  Illinois  has  ever  since  been  —  though  Mr.  Lincoln 
was  probably  not  aware  of  it  —  "  a  sovereign,  free,  and  independent 
state,"  with  all  political  power  and  rights,  not  only  in  her  absolute 
ownership,  but  —  excepting  such  powers  as  she  delegated  to  the  united 
states  —  in  her  actual  possession  ;  and  so  she  substantially  declares  in 
her  constitution. 

But  Mr.  Lincoln  was  excusable  for  attaching  importance  to  the  non- 
mention  of  sovereignty  in  the  federal  pact,  for  Mr.  Webster  (apparently 
believing  that  if  a  note,  bond,  or  other  instrument,  did  not  call  itself 
such,  it  might  be  something  else)  strenuously  argued  that  the  consti- 
tution was  a  constitution,  because  it  called  itself  a  constitution.  This 
is  another  of  those  numerous  subterfuges,  or  shams  of  argument,  the 
"  school "  is  remarkable  for.  Mr.  Webster's  sounding  phrases  on  this 
subject,  expressed  nothing,  for  states  could  constitute  a  constitution  of  a 
government,  and  call  it  a  constitution,  just  as  easily  and  properly  as 
the  people  of  a  state,  or  of  the  so-called  nation,  could. 

"  What  is  it  1 "  instead  of  "  What  does  it  call  itself? "  is  the  proper 
question  ;  and  the  conclusive  answer  is  —  "  The  constitution  of  [not 
the  united  people  or  nation,  but]  the  united  states.' 

Mr.  Lincoln  seemed  to  think  that  nations  or  states  must,  somehow, 
lose  their  sovereignty  by  not  mentioning  it  in  their  compacts.  Possi- 
bly he  asserted  ownership  in  the  powers  of  attorney  he  gave  ;  or  his 
jus  disponendi,  his  sound  mind,  and  the  name  of  the  document,  in 
each  of  his  grants  or  conveyances  !  A  Southern  supreme  court  of  the 
same  flock,  considered  defective  a  certain  class  of  titles,  which  all 
courts  had  for  generations  recognized,  because  the  subjects  of  such 
titles  were  not  mentioned  in  the  federal  constitution ! 

The  Union  created  the  States !  —  "  The  union  is  older  than  any 
of  the  states,  and  in  fact  it  created  them  as  states" 

He  probably  guessed  that  this  was  what  Story  and  Webster  meant, 
and  he  was  not  far  wrong,  though  they  would  have  blushed  to  see 
their  views  thus  paraphrased.  "  Union  of  states,"  and  "  united  states," 
are  both  constitutional  phrases ;  and  he  might  as  well  have  said 
"  united  is  older  than  any  of  the  states,  and  in  fact  it  created  them 
as  states ;  being  united  colonies  before  they  were  united  states,  it  fol- 
lows that  united  made  them  states !  " 


218  FALLACIOUS  EXPOSITION. 

Would  even  Mr.  Lincoln  (let  alone  Story  and  Webster)  have  paid 
the  price  of  pearls  for  the  string  on  which  they  were  strung  1  And 
yet,  in  the  phrase  —  "a  string  of  pearls,"  "  string  "  bears  the  same  rela- 
tion to  "pearls,"  that  ''union"  does  to  "states."  The  same  remark 
applies  to  the  phrases  :  "  a  set  of  diamonds,"  "  a  purse  of  guineas," 
"  a  guild  of  men,"  and  a  federation  or  union  of  republics.  The  first 
name  in  each  sentence  is  merely  a  descriptive  one,  while  the  main 
significance  is  in  the  last.  The  truth  is,  the  constant  use  of  the  word 
"  union,"  in  place  of  the  constitutional  phrase  "  the  united  states," 
and  the  various  phrases  expressing  "  union  of  states,"  is  a  mere  sub- 
terfuge, for  these  phrases  are  fatal  to  the  whole  argument  of  the  ex- 
pounders. They  show  that  all  original  authority  must  be  in  the 
several  states,  while  all  delegated  authority  must  be  in  "  the  united  states" 
The  states  must  have  pre-existed  to  be  associated*  while  the  same  states 
must  continue  to  exist,  to  be  the  united  states. 

The  States  became  subject  to  their  own  Union  !  —  Let  us  notice 
one  more  gem.  The  states  have  "  their  status  in  the  union,  and  they 
have  no  other  legal  status.  .  .  .  Our  states  have  neither  more  nor  less 
power  than  that  reserved  to  them  in  the  union  by  the  constitution,  no  one 
of  them  ever  having  been  a  state  out  of  the  union" 

Every  word  is  fallacious  and  untrue,  for  the  states  were  necessarily 
pre-existent  to  the  union  of  them  ;  their  wills  made  the  union  ;  their 
instrument  of  compact  throughout  contemplates  and  treats  them  as 
the  sole  parties  to,  and  actors  in,  the  union ;  and  finally,  they  call 
themselves  therein  a  "  union  of  states  "  and  "  united  states  "  —  using 
these  very  words.  As  individual  states,  they  must  have  possessed  all 
original  authority,  and,  as  an  association,  they  could  but  hold  dele- 
gated power. 

But  the  climax  of  Lincoln's  absurdity  consists  in  his  pointing  to 
the  tenth  amendment,  as  the  evidence  of  the  states  having  no  other 
powers  than  those  "  reserved  to  them  in  the  union  by  the  constitu- 
tion." and  thus  showing  that  our  foolish  fathers  left  the  states,  under 
the  original  constitution,  absolutely  without  powers;  and  had  to 
amend,  in  order  to  give  them  a  few ! 

Common  sense  would  have  taught  Mr.  Lincoln  that  the  states  of 
the  association  "  delegated  "  and  "  vested  "  all  the  "  powers  "  in  the 
pact ;  and  "  retained  "  all  rights  and  powers  not  delegated  ;  i.  e.  kept 
them  out  of  the  pact,  and  in  themselves ;  that  the  powers  delegated 
must  be  still  owned  by  them,  and  hence  that  the  states  have  all 
powers,  including  those  in  "  the  constitution  of  [i.  e.  belonging  to]  the 
united  states." 

Everybody  knows,  from  the  case  of  Texas,  North  Carolina,  and 
Rhode  Island  —  to  say  nothing  of  others  —  that  Mr.  Lincoln's  asser- 


LINCOLN'S  PLAIN  ENGLISH.  219 

tion,  that  no  state  was  ever  such  out  of  the  union,  is  entirely  un- 
founded !  But  if  it  were  true,  it  would  not  affect  the  question  of 
sovereignty,  as  this  is  only  predicable  of  will,  and  as  will  only  resides 
in  the  republics  or  organizations  of  self-ruling  people. 

Seeing  Things  upside  down  —  Would  to  God  these  perversions 
and  blunders  had  been  as  harmless  as  they  are  amusing !  They  are 
only  equalled  by  those  of  the  philosophers  who  contend  that  the  sun 
diurnally  circuits  the  earth ;  or  that  of  the  boozy  wight,  standing  on 
the  wrong  side  of  the  square,  awaiting  the  arrival  of  his  house,  so 
that  he  can  step  in ;  or  that  of  the  Irishman  digging  away  a  bank 
"  to  let  the  dark  out  of  his  cellar  ! " 

These  are  called  "constitutional  views!"  If  "views"  at  all,  they 
are  "  views  "  afar  off —  through  the  moral  mirage  of  platforms,  par- 
tisan speeches,  and  sectional  commentaries,  which  distort  every  thing, 
and  turn  it  upside  down.  Why !  if  Hamilton,  Jay,  Washington, 
Hancock,  Franklin,  and  all  those  fathers  who  were  so  fortunate  as  to 
die  early,  were  to  revisit  their  beloved  America,  such  "  views  "  would 
astonish  them  as  much  as  it  would  to  see  people  standing  on  their 
heads,  houses  inverted,  ships  "  walking  the  waters,"  with  masts  for 
legs;  trees  rooted  in  the  sky;  rivers  running  to  their  sources;  or 
babes  giving  birth  to  their  parents. 

They  would  find  their  voluntary  union  of  states  to  have  grown  in- 
voluntary and  indissoluble  ;  states  degraded  to  counties,  and  returned 
to  a  worse  than  British  provincialism ;  and  the  quondam  govern- 
mental agency  transmuted  to  a  new  and  monstrous  entity  —  a  soul- 
less being,  with  "  absolute  supremacy,"  and  swaying  the  sceptre  of  an 
empire  ! 

The  Worship  of  the  Idol  "  Union."  —  In  the  very  next  paragraph 
to  the  one  just  reviewed,  Mr.  Lincoln  uses  the  word  "  union,"  in  the 
absurd  sense  I  have  indicated,  seven  times  in  nine  lines.  The  priests 
of  union-worship,  wishing  to  avoid  the  ideas  couched  in  the  full 
phrase,  "union  of  states,"  or  "united  states,"  use  the  word  "union" 
without  its  proper  adjuncts,  and  attribute  to  it  corporate  personality, 
and  sovereign  authority ;  besides  falsely  saying  it  is  a  union  of  peo- 
ple, and  not  a  union  of  states.  They  cite  as  their  sole  proof,  the 
insignificant  tag  called  the  preamble,  which,  though  vastly  important 
as  a  statement  of  motives,  is  really  no  more  of  the  compact  or  law, 
than  the  tail,  or  the  kink  of  it,  is  of  the  pig ;  and  conclude  the  argu- 
ment by  the  untruth,  that  the  states  ceded  or  surrendered  (i.  e.  alien- 
ated) to  the  said  "  union,"  a  paramount  or  supreme  sovereignty  over 
themselves.  Not  a  line  of  the  constitution  or  history,  hints  at  any 
such  transfer,  while  all  evidences  show  that  the  separate  states  dele- 
gated (but  did  not  alienate)  powers  to  "  the  united  states  "  (and  not 


220  FALLACIOUS  EXPOSITION. 

to  the  "  union,")  these  states  thus  governing  themselves,  as  to  their 
federal  affairs,  through  their  federal  agency. 

The  sophistical  and  quibbling  priests  know  that  by  using  the  con- 
stitutional phrases  "united  states"  and  "union  of  states,"  they 
would  direct  the  thoughts,  even  of  the  simplest  mind,  to  moral  or 
political  persons  —  commonwealths  self-joined  for  self-government  and 
self-preservation.  They  know  that  the  said  mind  would  look  into  the 
pact,  and  see  "the  states  in  this  union"  [Art.  IV.]  to  be  the  parties, 
the  delegators,  the  sovereigns ;  and  the  government  to  be  the  crea- 
tion, and  the  agent  of  the  said  states.  Aye,  they  know  that  men 
who  have  merely  enough  brains  and  education  to  read  and  count, 
may  see,  in  the  instrument,  specified  powers,  confided  to  the  said 
agent  by  the  said  sovereigns ;  can,  on  a  tally-stick,  notch  the  num- 
ber of  them ;  and  must  know  that  a  president,  whether  named 
Buchanan,  Lincoln,  Johnson,  Grant,  or  Hayes,  becomes  a  perjured 
usurper  and  traitor,  and  deserves  to  be  hung,  the  moment  he  goes 
beyond  them. 

These  are  the  Reasons  why,  under  pretence  of  interpretations, 
commentaries,  judicial  decisions,  etc.,  the  so-called  expounders  sophis- 
ticate, misrepresent,  garble,  and  falsify  the  sacred  records  of  the 
country ;  why  they  found  a  theory  on  the  preamble  that  belies  the 
compact ;  why  Story  adds  an  eighth  article  to  the  constitution  [Story, 
Com.  §  1856],  and  why  the  names  of  the  signers,  who  simply  planned, 
but  did  not  ordain,  the  compact,  are  always  published  with  the  in- 
strument, to  make  the  impression  that  they  ordained,  while  the 
names  and  acts  of  the  states,  who  did  ordain  and  establish,  are  always 
suppressed  or  ignored  ! 

These  are  the  reasons  why  our  deluded  people  are  induced  to  look 
up  to  flags,  soaring  eagles,  and  stars  —  not  down  to  what  these  are 
symbols  of;  to  search  in  "the  milky  baldric  of  the  skies"  for  the 
constellation  of  the  union,  rather  than  grovel  in  —  to  understand  — 
the  actual  system  of  associated  states ;  and  to  keep  their  "  eyes  in 
fine  frenzy  rolling,  from  earth  to  heaven,"  instead  of  watching,  with 
that  "  eternal  vigilance  which  is  the  price  of  liberty,"  to  see  that  the 
sacred  constitution  is  preserved,  and  its  duties  done. 

Just  so  the  priests  of  idolatry  divert  attention  from  the  statue  of 
wood  or  stone ;  prohibit  reasoning  about  it ;  and  send  the  heated  and 
fanatical  imaginations  of  devotees,  filled  with  fear  and  awe,  in  search 
of  some  invisible  spirit,  whose  all-power  can  favor  or  harm  them, 
according  to  their  obedience  and  gifts  to  the  priesthood  ! 

Eternal  Vigilance  is  the  Price  of  Liberty! — The  people  of  America 
must  come  down  from  stars,  and  eagles,  and  flags  ;  and  regard  matters 
of  political  government  as  human  and  earthly  affairs,  to  be  arranged,  in 


LINCOLN'S  PLAIN  ENGLISH. 


221 


a  common-sense  and  judicious  manner,  for  the  benefit  of  all  concerned. 
A  voluntary  union  among  neighboring  states  must  be  founded  on 
amity  and  mutual  interest ;  and  these  motives,  as  well  as  the  volun- 
tariness,  must  be  preserved,  or  the  association  of  states  becomes  an 
empire  of  provinces ! 

Fisher  Ames  likened  the  states  to  beautiful  and  useful  structures, 
standing  upon  the  naked  beach,  and  the  union  to  a  dyke  fencing  out 
the  flood;  and  said  that  without  this,  the  next  spring  tide  would 
sweep  them  to  a  common  destruction.  [II.  Ell.  Deb.  159.] 

Americans  must  become  practical  —  nay,  vulgarly  prudent,  and 
even  grovel  in  and  among  their  defences,  remembering  that  their 
institutional  walls  are  to  protect  their  precious  blessings  in  their  cita- 
dels of  liberty,  the  commonwealths,  not  more  from  exterior  force, 
than  from  their  own  rulers. 


CHAPTER  X. 

WASHINGTON'S  POLITICAL  FAITH. 

HAVING  noticed  the  preposterous  theory  predicated  of  the  con- 
stitution by  Lincoln,  I  will  show  the  directly  opposite  view 
taken  of  the  same  sacred  words  and  figures  by  the  great  Wash- 
ington. 

I  need  not  contrast  the  men,  as  it  will  be  duly  done  by  history. 
But  their  assertions  and  opinions  should  be  compared.  And  to  deter- 
mine preponderance,  perhaps  we  should  contrast  Lincoln's  training 
and  associates,  and  his  sudden  rise  and  growth  from  partisan  and 
sectional  antagonism,  with  Washington's  gradual  growth  of  intel- 
lectual stature,  his  exemption  from  sectional  and  partisan  preju- 
dice, and  his  being  of  that  august  band  of  patriots — primus  inter 
pares  —  who  made  American  federal  liberty  institutional.  Nay,  more, 
Washington's  intercourse  with  the  giants  of  those  days,  was  fraternal 
and  close  through  their  generation ;  and  he  bore  a  leading  part  in  all 
the  discussions  and  ordainings  which  make  up  the  recorded  political 
history  and  philosophy  of  that  sublime  epoch. 

It  may  be  said,  without  fear  of  contradiction,  that  the  statements 
of  the  fathers,  contained  in  Part  I.,  Chapter  VII.,  of  this  work,  are 
precisely  the  views  of  Washington.  The  following  extracts  show  this 
beyond  all  doubt  or  cavil. 

And  if  the  American  people  be  really  possessed  of  the  spirit  of 
'76,  they  will  henceforth  follow  the  commentaries  of  the  expounder, 
par  excellence,  George  Washington !  and  thus  preserve  the  common- 
wealths and  their  union ! 

Washington  was  as  truly  a  state-rights,  or  rather  state-sovereignty 
man,  as  Jefferson  or  Calhoun,  and  understood  our  institutions  quite 
as  well  as  they  did.  But  he  never  thought  of  the  miserable  figments 
which  Story,  Webster,  Lincoln,  and  the  Philadelphia  convention  of 
1866,  foisted  upon  the  constitution  as  expoundings  of  it;  viz.,  that 
the  making  of  the  union  consolidated  the  several  commonwealths  of 
America  into  one  national  unit ;  or,  in  other  words,  the  people  as  a 
nation,  in  their  national  constitution,  "distributed  their  powers  be- 


WASHINGTON'S  POLITICAL  FAITH.  223 

tween  their  general  government  and  their  several  state  governments ; " 
and  that  so  far  as  the  constitution  went,  "  so  far  state  sovereignty  was 
effectually  controlled ; "  or,  to  sum  up  the  matter  in  a  sentence,  that 
the  states  were  reduced  to  mere  fractions  of  the  great  unit,  —  i.  e.  to 
counties  or  provinces  of  a  state. 

The  most  of  the  extracts  will  be  found  in  Sparks's  "  Writings  of 
Washington."  If  they  are  elsewhere,  proper  citations  will  be  given. 
The  reader  will  please  observe  that  this  "  great  expounder  "  begins  by 
mentioning  that  "  the  states  [are]  to  appear  in  the  convention ; "  that 
he  speaks,  all  the  way  through,  of  the  states  adopting,  ratifying,  or 
acceding  to  the  compact;  that  he  calls  the  people  "the  people  of 
these  states,"  and  the  new  system,  "  the  federal  government  of  these 
states  "  (and,  by  the  way,  this  is  the  unanimous  expression  of  the 
"  convention  of  states  "  that  he  presided  over) ;  that  he  speaks  of  the 
constitution  as  providing  for  "  the  political  relation  which  is  to  sub- 
sist" between  "the  states,"  and  of  "the  measures,  taken  by  the  dif- 
ferent states,  for  carrying  the  new  government  into  execution ; "  and, 
finally,  that  he  says  it  will  be  "  an  important  epoch  in  the  annals  of 
this  country,"  "  when  the  states  begin  to  act  under  the  new  form." 

Washington  to  Madison,  March  31,  1787  :  — 

"  I  am  glad  to  find  that  congress  have  recommended  to  the  states 
to  appear  in  the  convention." 

General  Knox  to  Washington,  March  19,  1787  :  — 

"  Your  name  has  had  great  influence  to  induce  the  states  to  come 
into  the  measure." 

Washington  to  Edmund  Randolph,  April  9,  1787  :  — 

"I  very  much  fear  that  all  the  states  will  not  appear  in  con- 
vention." 

Washington  to  David  Stuart,  July  1,  1787 :  — 

"Whilst  independent  sovereignty  is  so  ardently  contended  for, 
whilst  the  local  views  and  separate  interests  of  each  state  will  not 
yield  to  a  more  enlarged  scale  of  politics,"  etc.,  "  the  situation  of  the 
country  "  must  be  "  weak,  inefficient,  and  disgraceful ! "  [See  remarks 
on  the  following  letter.] 

The  celebrated  letter  of  Washington  to  "  the  president  of  congress," 
written  by  unanimous  order  of  the  convention  of  the  deputies  and 
subjects  of  the  states,  to  accompany  the  constitution  proposed  by  the 
said  convention,  for  the  adoption  or  rejection  of  the  said  states,  dated 
September  17,  1787,  contains  the  following:  — 

"  The  friends  of  our  country  have  long  seen  and  desired  that  the 
power  of  making  war,  peace,  and  treaties,  that  of  levying  money  and 
regulating  commerce,  and  the  correspondent  executive  and  judicial 
authorities,  should  be  fully  and  effectually  vested  in  the  general  gov- 


224  FALLACIOUS  EXPOSITION. 

ernment  of  the  union ;  but  the  impropriety  of  delegating  such  exten- 
sive trust  to  one  body  of  men  is  evident.  Hence  results  the  necessity 
of  a  different  organization. 

"  It  is  obviously  impracticable,  in  the  federal  government  of  these 
states,  to  secure  all  rights  of  independent  sovereignty  to  each,  and 
yet  provide  for  the  interest  and  safety  of  all.  Individuals  entering 
into  society  must  give  up  a  share  of  liberty  to  preserve  the  rest.  .  .  . 

"  In  all  our  deliberations  on  this  subject,  we  kept  steadily  in  our 
view  .  .  .  the  consolidation  of  our  union,  in  which  is  involved  our 
prosperity,  felicity,  safety,  perhaps  our  national  existence.  This  im- 
portant consideration  .  .  .  led  each  state  in  the  convention  to  be  less 
rigid,  .  .  .  and  thus  the  Constitution  ...  is  the  result  of  a  spirit  of 
amity,  and  of  that  mutual  deference  and  concession  which  the  pecul- 
iarity of  our  political  situation  rendered,  indispensable."  He  finally 
says  that  it  may  not  meet  "  the  full  and  entire  approbation  of  every 
state ; "  but  that  "  each  will  doubtless  consider  that,  had  her  interests 
alone  been  consulted,"  it  might  have  been  "disagreeable  or  injurious 
to  others." 

We  see  from  this  letter,  as  well  as  from  the  one  dated  July  1,  1787, 
that  Washington  used  the  word  "  sovereignty,"  as  it  was  frequently 
used  in  that  day,  in  the  second,  subordinate,  and  improper  sense  of 
government.  Both  state  and  federal  governments  were  often  called 
sovereignties,  —  for  the  reason,  probably,  that  they  occupied  the  same 
position  relatively  to  the  subjects  of  government  that  the  sovereigns 
of  Europe  did,  —  and  it  was  then,  as  it  is  now,  sometimes  forgotten 
that  those  potentates  claimed  to  rule  by  Divine  right,  and  maintained 
the  claim  by  force,  while  our  governments,  being  creations  and  having 
only  derivative  authority,  must  be  subordinate,  and  not  sovereign. 
In  truth,  they  exist  by  the  will,  and  rule  by  the  consent  of  the  people. 
A  thousand  evidences  might  be  given ;  but  Mr.  Webster's  admission, 
in  1833,  will  suffice  :  "The  sovereignty  of  government  is  an  idea  be- 
longing to  the  other  side  of  the  Atlantic.  No  such  thing  is  known  in 
North  America.  .  .  .  With  us  all  power  is  with  the  people.  They 
alone  are  sovereign,  and  they  erect  what  governments  they  please,  and 
confer  on  them  such  power  as  they  please." 

And  Washington,  as  will  be  seen,  always  recognized  the  truth  that 
the  "  all  power  "  in  question  was  in  the  people  as  states,  and  that  they 
were  only  organized  and  capable  of  political  action  as  such ;  and,  con- 
sistently, each  state  declared  or  implied  in  her  organic  law  that  all 
power  was  inherent  in  herself,  i.  e.  her  people.  [See  constitutions  of 
Massachusetts,  New  York,  and  others.] 

Another  important  point  of  the  above  letter  must  be  noted  here. 
In  speaking  of  the  legislative,  executive,  and  judicial  powers  to  be 


WASHINGTON'S  POLITICAL  FAITH.  225 

"vested  in  the  general  government,"  Washington  and  the  convention 
say  :  "  The  impropriety  of  delegating  such  extensive  trust  to  one  body 
of  men  is  evident.  Hence  results  the  necessity  of  a  different  organi- 
zation." It  is  quite  obvious  that  the  "different  organization  "  spoken 
of  is  the  complete  government  of  three  co-ordinate  departments,  — 
the  legislative  one  being  in  two  branches,  —  this  government  operat- 
ing directly  on  the  individual  people,  and  executing  its  own  powers ; 
whereas  the  "one  body  of  men  "  in  the  congress  to  be  superseded,  had 
no  power  to  enforce  its  laws,  and  no  direct  contact  with  the  people. 
It  is  also  obvious  that,  in  both  cases,  the  government  was  made  and 
empowered  by  pre-existing  and  continuing  states,  and  that  hence  it 
was  impossible  that  anything  other  than  a  federation  should  be 
formed.  The  oft-repeated  constitutional  phrases,  "  united  states,"  and 
"  union  of  states,"  of  themselves  are  full  proof  of  a  confederacy.  This 
explanation  is  made  for  the  purpose  of  exposing  the  mistake  made  by 
Story,  Webster,  and  the  Supreme  Court  of  the  United  States,  to  the 
effect  that  the  change  referred  to  by  the  fathers  was  a  change  from  a 
federation  to  "another  system"  which  was  not  a  federation. 

So  far  from  this  being  true,  the  fathers  generally  (including  Wash- 
ington) asserted  the  new  system  to  be  a  "confederacy,"  and,  more- 
over, they  stated  the  actual  change  wrought,  precisely  as  Washington 
and  the  convention  do  in  the  above  letter.  Both  ideas,  i.  e.  the  con- 
federacy and  the  character  of  the  change,  are  happily  put  in  juxta- 
position by  Mr.  Spaight,  in  the  convention  of  North  Carolina,  of  which 
(after  serving  in  the  federal  convention)  he  was  an  able  and  active 
member.  Said  he  :  "  What  the  federal  convention  has  done  is  a  mere 
proposal.  It  was  found  impossible  to  improve  the  old  system,  without 
changing  its  very  form ;  for,  by  that  system,  the  three  great  branches 
of  government  are  blended  together.  .  .  .  The  proposing  of  a  new 
system,  to  be  established  by  the  assent  and  ratification  of  nine  states, 
arose  from  the  necessity  of  the  case.  ...  It  is  adopted  by  ten  states 
already.  The  question  then  is,  not  whether  the  constitution  be  good, 
but  whether  we  will  or  will  not  confederate  with  the  other  states." 
[IV.  Ell.  Deb.  206-8.  See  also  Pinckney's  remarks,  IV.  Ell.  Deb. 
256.]  And  in  Elliott's  Debates  generally,  it  will  be  seen  that  the 
change  was  explained  as  above,  —  all  the  fathers  recognizing  the 
states,  whose  subjects  they  were,  as  the  parties  to,  and  the  sovereigns 
in,  the  new  system. 

We  see,  then,  that  Washington  and  the  whole  convention  of  1787, 
considered  the  change  being  made  as  the  substitution  of  one  federal 
government  for  another,  —  the  differences  between  the  two  being  in 
the  mode  of  organization,  and  in  the  direct  connection  of  the  new  one 
with  the  people,  instead  of  the  legislatures  of  the  states.  The  com- 

15 


226  FALLACIOUS  EXPOSITION. 

monwealths  were  recognized  by  all  as  the  sole  constituents  of  the 
new,  as  they  had  been  of  the  old  federation. 

That  this  was  Washington's  view  will  become  clearer  as  we  ad- 
vance. 

Washington  to  Patrick  Henry,  September  24,  1787,  sends  "copy  of 
the  constitution  which  the  federal  convention  has  submitted  to  the 
people  of  these  states.  .  .  .  Your  own  judgment  will  at  once  dis- 
cover the  good  and  the  exceptionable  parts  of  it.  ...  I  wish  the 
constitution  which  is  offered  had  been  more  perfect,  but  I  sincerely 
believe  that  it  is  the  best  that  could  be  obtained  at  this  time.  As  a 
constitutional  door  is  open  for  amendments  hereafter,  the  adoption  of 
it,  under  the  present  circumstances  of  the  union,  is,  in  my  opinion, 
desirable." 

Benjamin  Harrison,  having  received  a  duplicate  of  the  above  letter, 
wrote  a  reply,  dated  October  4,  1787,  from  which  I  extract  the  fol- 
lowing, to  show  that  these  two  great  patriots  agreed  in  thinking  the 
constitution  defective,  and  that  it  might  be  a  failure,  as  it  was  an 
experiment.  Surely  they  could  never  have  supposed  that  the  voluntary 
parties  making  it,  and  creating  the  government  under  it,  would  be- 
come, by  its  operation,  involuntary  parties  to  it,  as  it  is  now  asserted 
they  are. 

"  I  cannot  divest  myself  of  an  opinion  that  the  seeds  of  civil  dis- 
cord are  plentifully  sown  in  very  many  of  the  powers  given,  both  to 
the  president  and  congress;  and  that  if  the  constitution  is  carried 
into  effect,  the  states  south  of  the  Potomac  will  be  little  more  than 
appendages  to  those  to  the  northward  of  it.  ...  In  the  interim, 
I  shall  only  say  that  my  objections  chiefly  lie  against  the  unlimited 
powers  of  taxation  and  the  regulations  of  trade,  and  the  jurisdictions 
that  are  to  be  established  in  every  state,  altogether  independent  of 
the  laws  thereof.  The  sword  and  such  powers  will  —  nay,  in  the  na- 
ture of  things  must  —  sooner  or  later,  establish  a  tyranny  not  inferior 
to  the  triumvirate  or  the  centumviri  of  Rome." 

Washington  to  Madison,  October  10,  1787  :  — 

"  I  scarcely  think  any  powerful  opposition  will  be  made  to  the  con- 
stitution's being  submitted  to  a  convention  of  this  state." 

Colonel  George  Mason,  in  his  objections  to  the  constitution  [I.  Ell. 
Deb.  494],  expressed  the  wish  that  it  might  be  provided  in  the  federal 
compact  that  any  navigation  law  should  require  a  two-thirds  vote. 
Washington  aptly  wrote,  in  a  letter  to  David  Stuart,  October  17,  1787, 
that  "  no  men,  bodies  of  men,  or  countries,  will  enter  into  any  compact 
or  treaty,  if  one  of  the  three  is  to  have  a  negative  control  over  the 
other  two.  .  .  .  There  must  be  reciprocity,  or  no  union." 

Now,  here  is  positive  proof  that  Washington  considered  the  present 


WASHINGTON'S   POLITICAL  FAITH.  227 

federal  constitution  to  be  a  "  compact  or  treaty  "  "  between  the  states 
ratifying  the  same." 

Washington  to  Bushrod  Washington,  November  10,  1787  :  — 

"A  candid  solution  of  a  simple  question  does,  in  my  opinion, 
decide  the  dispute,  namely,  Is  it  best  for  the  states  to  unite  1  ...  If 
the  union  of  the  whole  is  a  desirable  object,  the  component  parts  must 
yield  a  little  in  order  to  accomplish  it."  He  then  asks  what  course 
the  opponents  would  adopt  for  Virginia,  "  if  nine  other  states  should 
accede  to  the  constitution?  .  .  .  The  power  under  the  constitution 
will  always  be  in  the  people.  It  is  entrusted  for  certain  denned  pur- 
poses and  for  a  certain  limited  period  to  representatives  of  their  own 
choosing.  .  .  .  Their  servants  can,  and  undoubtedly  will,  be  recalled," 
if  they  act  "contrary  to  the  interests  and  wishes  of  the  people." 
"  No  government  can  be  well  administered  without  powers :  yet,  the 
instant  these  are  delegated,  although  those  who  are  entrusted  with  the 
administration  are  no  more  than  the  creatures  of  the  people,  act,  as  it 
were,  but  for  a  day,  and  are  amenable  for  every  false  step  they  take, 
they  are,  from  the  moment  they  receive  it,  set  down  for  tyrants." 

Washington  to  Madison,  in  congress,  December  7,  1787  :  — 

He  speaks  of  the  "  solicitude  "  felt  concerning  the  prospective  de- 
cisions of  the  conventions  of  the  states.  After  speaking  of  the  mo- 
tives of  several  of  the  states,  he  continues  :  "  If  these,  with  the  states 
eastward  and  northward  of  us,  should  accede  to  the  federal  govern- 
ment, I  think  the  citizens  of  this  state  will  have  no  cause  to  bless  the 
opposers  of  it  here,  if  they  should  carry  their  point." 

Washington  to  Jefferson,  January  1,  1788  :  — 

Speaking  of  the  chances  of  the  new  constitution  being  adopted,  he 
says:  "Pennsylvania,  New  Jersey,  and  Delaware  are  the  only  states 
whose  conventions  have,  as  yet,  decided  on  it."  He  then  says  :  "  Con- 
necticut and  Massachusetts  hold  their  conventions  this  month,  Mary- 
land in  April,  and  Virginia  in  June,"  etc.  He  apprehends  "  more  or 
less  opposition  in  the  most  of  the  states,"  formidable  in  Virginia  as 
well  as  New  York,  but  hopes  success.  He  finally  speaks  of  the  need 
of  "  an  efficient  general  government  to  regulate  our  commercial  con- 
cerns, to  give  us  national  respectability,  and  to  connect  the  political 
views  and  interests  of  the  several  states  under  one  head,  in  such  a 
manner  as  will  prevent  their  forming  separate  connections  with  Eu- 
ropean powers,  or  being  involved  in  European  disputes." 

Washington  to  Edmund  Randolph,  governor  of  Virginia,  January  8, 
1788:  — 

"There  are  some  things  in  the  new  form  which  I  readily  acknowl- 
edge do  not  and  never  will  obtain  my  cordial  approbation ;  but,  I  be- 
lieve, .  .  .  that,  in  the  aggregate,  it  is  the  best  constitution  that  can 


228  FALLACIOUS  EXPOSITION. 

be  obtained ;  and  that  this  or  a  dissolution  of  the  union  awaits  our 
choice,  and  is  the  only  alternative  before  us." 

Washington  to  Count  Rochambeau,  January  8,  1788;  also  to  Wil- 
liam Mclntosh,  same  date  :  — 

He  speaks  of  "  the  people  of  these  states,"  and  says  :  "  It  [the  con- 
stitution] is  to  be  submitted  to  conventions  chosen  by  the  people  in 
the  several  states,  and  by  them  approved  or  rejected."  This  of  itself 
shows  that  Washington  considered  the  people,  as  organized  in  states, 
to  be  absolutely  sovereign. 

Washington  to  Madison,  in  congress,  January  10,  1788  :  — 

Speaks  of  the'  constitution  being  likely  to  produce  that  "  energy, 
stability,  and  security  which  is,  or  ought  to  be,  the  wish  of  every 
good  citizen  of  the  union."  Speaking  of  the  arguments  to  be  used  in 
the  convention  of  Virginia,  he  "expects  the  most  prevailing  one  will 
be,  that  nine  states  at  least  will  have  acceded  to  it." 

Washington  to  Marquis  De  Lafayette,  February  7,  1 788  :  — 

"  It  appears  to  me  little  short  of  a  miracle  that  the  delegates  from 
so  many  states,  different  from  each  other  in  their  manners,  circum- 
stances, and  principles,  should  unite  in  forming  a  system  of  national 
government  so  little  liable  to  well-founded  objections.  .  .  .  With  re- 
gard to  the  two  great  points  —  the  pivots  upon  which  the  whole  ma- 
chine must  move  —  my  creed  is  simply,  — 

"  First,  that  the  general  government  is  not  invested  with  more 
powers  than  are  indispensably  necessary  to  perform  the  functions  of  a 
good  government,  and,  consequently,  that  no  objection  ought  to  be 
made  against  the  quantity  of  power  delegated  to  it. 

"Secondly,  that  these  powers  —  as  the  appointment  of  all  rulers 
will  forever  arise  from,  and,  at  short  stated  intervals,  recur  to,  the  free 
suffrage  of  the  people  —  are  so  distributed  among  the  legislative,  ex- 
ecutive, and  judicial  branches,  into  which  the  general  government  is 
arranged,  that  it  can  never  be  in  danger  of  degenerating  into  a  mon- 
archy, an  oligarchy,  an  aristocracy,  or  any  other  despotic  or  oppressive 
form,  so  long  as  there  shall  remain  any  virtue  in  the  body  of  the 
people." 

He  then  proceeds  to  recognize  the  truth  that  the  constitution  can 
afford  no  security  against  the  consequences  of  "  the  corruption  of  the 
morals  "  of  the  people,  their  neglect  of  the  duty  of  being  vigilant  as 
to  the  preservation  of  their  rights,  and  the  "  successful  usurpations 
that  may  be  established  "  on  the  ruins  of  liberty. 

And  he  concludes  by  speaking  of  "  the  prospect  of  the  constitu- 
tion's being  adopted  by  nine  states  or  more.  Pennsylvania,  Delaware, 
New  Jersey,  and  Connecticut  have  already  done  it.  It  is  also  said 
that  Georgia  has  acceded." 


WASHINGTON'S  POLITICAL  FAITH.  229 

Washington  to  Lafayette,  April  28,  1788  :  — 

''The  people  retain  everything  they  do  not,  by  express  terms,  give 
up.  Hence  a  bill  of  rights  is  nugatory." 

Washington  to  Jay,  May  15,  1788  :  — 

"  Should  South  Carolina,  now  in  session,  decide  favorably,  and  the 
government  thereby  (nine  states  having  acceded)  get  in  motion,  I 
scarcely  conceive  that  one  of  the  remainder,  or  all  of  them  together, 
.  .  .  would  incline  to  withdraw  from  the  union  with  the  other  nine." 

Washington  to  General  Knox,  June  17,  1788  :  — 

"  The  information  of  the  accession  of  South  Carolina  to  the  new 
government  gives  us  a  new  subject  of  mutual  felicitations."  Then, 
expressing  the  hope  that  it  will  have  influence  on  the  convention  of 
Virginia,  he  concludes  by  saying  that  there  is  every  prospect  that  the 
constitution  will  be  adopted  in  New  Hampshire.  "  I  cannot  but  hope, 
then,  that  the  states  which  may  be  disposed  to  make  a  secession  [from 
the  union]  will  think  often  and  seriously  on  the  consequences." 

Washington  to  Jay,  June  8,  1788  :  — 

"  I  congratulate  you  on  the  adoption  of  the  constitution  by  the 
convention  of  South  Carolina."  He  then  expressed  regret  that  the 
New  York  convention  had  a  majority  of  anti-federalists,  and  said  : 
"  If  this  state  should,  in  the  intermediate  time,  make  the  ninth  that 
shall  have  ratified  the  proposed  government,  it  will,  I  flatter  myself, 
have  its  due  weight." 

Washington  to  Marquis  De  Lafayette,  June  17,  1788  :  — 

"  I  mentioned  [in  a  letter  by  Mr.  Barlow]  the  accession  of  Maryland 
to  the  proposed  government.  .  .  .  The  accession  of  one  state  more 
will  complete  the  number  (nine)  needed  to  establish  it."  He  evidently 
thought  states^  and  not  a  nation,  were  "  to  establish  it." 

Washington  to  General  Pinckney,  June  28,  1788  :  — 

Speaks  of  the  adoption  by  the  Virginia  convention,  by  a  vote  of  89 
to  79.  He  speaks  of  the  people  of  Alexandria  devoting  this  day  to 
rejoicing,  and  their  enjoyment  being  heightened  by  the  news  that 
"New  Hampshire  had,  on  the  21st  inst.,  acceded  to  the  new  confed- 
eracy, by  a  majority  of  11  voices,  that  is  to  say,  57  to  46."  Mark  the 
important  words  "  acceded  to  the  neiv  confederacy  !  " 

He  says,  further,  that  they  had  the  pleasure  of  "pouring  a  libation 
to  the  prosperity  of  the  ten  states,  that  have  actually  adopted  the 
general  government;"  and  expresses  a  "hope  that  the  union  will 
now  be  established  on  a  durable  basis.  Providence,"  he  continues, 
"seems  still  disposed  to  favor  the  members  of  it,  with  unequalled 
opportunities  for  political  happiness." 

As  to  North  Carolina,  he  says  :  "  I  should  be  astonished  if  that 
state  should  withdraw  from  the  union."  As  to  New  York,  he  says : 


230  FALLACIOUS  EXPOSITION. 

"  The  majority  of  tlie  convention  seems  opposed  to  the  adoption  of  the 
new  federal  system."  But  he  seems  to  count  on  the  example  of  the 
states  which  have  already  acted,  for  he  says  in  conclusion  :  "  The  de- 
cision of  ten  states  can  hardly  be  without  its  operation.  .  .  .  After 
New  York  shall  have  acted,  then  only  one  little  state  shall  remain." 

Washington  to  John  Jay,  July  18,  1788:  "The  accession  of  ten 
states  must  operate  forcibly  with  the  opposition,"  etc. 

Washington  to  Madison  (in  congress),  August  3,  1788  :  ".  .  .  The 
several  parts  should  submit  to  the  inconveniences,  for  the  benefits 
they  derive  from  the  conveniences  of  the  compact.  .  .  .  Toward  New 
York  we  look  for  whatever  is  interesting,  till  the  states  begin  to  act 
under  the  new  compact,  which  will  be  an  important  epoch  in  the 
annals  of  this  country."  Note  that  "  the  states  "  are  "  to  act  under 
the  new  compact." 

Washington  to  Sir  Edward  Newenham,  July  20,  1788,  speaks  of 
our  having  formed  "  a  confederated  government,  where  due  energy 
will  not  be  incompatible  with  the  inalienable  rights  of  freemen." 

Washington  to  Benjamin  Lincoln,  October  26,  1788  :  "  The  constant 
report  is  that  North  Carolina  will  soon  accede  to  the  new  union." 

He  further  says :  "  Whoever  shall  be  found  to  enjoy  the  confidence 
of  the  states,  so  far  as  to  be  elected  Vice-President,  will  be  acceptable 
to  me,  should  I  be  President." 

We  see  from  the  above  extracts  that  Washington  constantly  recog- 
nized the  absolute  states  of  Massachusetts,  New  York,  Pennsylvania, 
Virginia  and  others,  as  the  high  contracting  powers  then  forming  the 
federal  (or,  to  coin  an  English  synonym,  the  league-al)  constitution. 
His  idea  was  that  the  states  were  associating  themselves,  to  act  thence- 
forward as  a  union  of  states  (as  the  constitution  repeatedly  calls  the 
polity  formed),  or  a  "  confederacy,"  which  was  his  own  name  for  the 
new  system. 

As  the  other  fathers  did,  he  often  used  the  general  phrase  "  the 
people,"  meaning  all  the  people  of  the  country ;  but  it  is  equally  true 
that  he  and  they  meant  "  the  people  "  as  organized.  They  (the  said 
people)  were  organized  only  in  states,  and  they  had  capacity  for  po- 
litical action  only  as  such.  They  were  not  organized  as  a  nation,  and 
they  could  not  politically  act  as  such,  for  they  must  act  according  to 
the  law  of  their  political  being.  Moreover,  there  is  no  record  of  any 
national  action  whatever  in  forming  or  adopting  the  constitution. 


CHAPTER  XI. 
WASHINGTON'S  POLITICAL  FAITH  (CONTINUED). 

THE  foregoing  views  of  the  Father  of  his  Country  on  the  consti- 
tution were  expressed  before  he  became  President.  They  may 
be  styled  his  contemporaneous  exposition  of  the  polity  then  being 
established.  His  evidence  is  of  the  highest  character. 

The  present  chapter,  which  I  equally  value,  but  do  not  offer  as  tes- 
timony, consists  of  his  expressions  after  becoming  President,  and  is  a 
most  precious  legacy  of  wisdom  to  his  countrymen.  In  the  process 
of  administering  the  federal  polity,  he  closely  observed  and  deeply 
studied  its  character  and  workings ;  and  in  all  he  said  and  wrote,  he 
treated  of  the  system  as  a  union  of  republics,  the  motives  of  which 
ire  amity  and  mutual  interest,  and  the  purposes  of  which  are  "  the 

>mmon  defence,"  "the  general  welfare,"  and  the  security  of  "the 
)lessings  of  liberty." 

Moreover,  he  not  only  called  the  system  "  the  new  confederacy,"  and 
the  states  "the  members  of  the  union,"  but  he  regarded  the  consti- 
tution as  establishing  the  only  relations  between  the  states,  and  the 
said  states  as  the  sole  actors  in  the  union,  and  the  exclusive  sources 
of  political  power.  The  truth  is,  Washington  and  the  rest  of  the 
ithers  thought  that,  as  all  the  territory  and  all  the  people  belonged 
exclusively  to  the  states,  any  general  constitution  must  be  made  by 
;hem,  must  belong  to  them,  must  provide  for  their  union,  and  must  be 
worked  for  their  benefit  and  with  their  authority.  The  country  was 
theirs,  and  the  government  their  servant,  just  as  much  as  his  house- 
hold belonged  to  him,  and  the  domestics  of  it  were  under  his  control. 
He  and  they  evidently  assumed  that  all  rights  were  state  rights,  all 
iitizens  state  citizens,  all  sovereignty  state  sovereignty,  all  allegiance 
state  allegiance,  and  all  treason  state  treason  !  , 

These  ideas  may  seem  strange  to  some ;  but  I  believe  Washington, 
so  far  as  he  thought  of  them,  took  them  for  granted,  and  never  wrote 
an  inconsistent  word.  But  let  us  proceed  with  his  record,  remember- 
ing that,  after  the  inauguration  of  the  government,  his  testimony  is 
from  better  insight,  and  against  his  interest  and  his  possible  love 
of  power. 


232  FALLACIOUS  EXPOSITION. 

Washington  to  Jefferson,  February  13,  1789,  speaks  of  "the  meas- 
ures taken  by  the  different  states  for  carrying  the  new  government 
into  execution." 

Washington  to  Innes,  March  2,  1789,  speaks  severely  of  "those 
who,  by  sowing  the  seeds  of  disaffection,  may  attempt  to  separate  any 
portion  of  the  united  states  from  the  union." 

Washington  to  Governor  Johnston,  of  North  Carolina,  June  19,  1 789, 
speaks  of  the  probability  of  North  Carolina  "  speedily  acceding  to  the 
new  general  government,"  and  of  the  "  subject  of  the  most  momentous 
consequence  "  to  be  dealt  with  by  the  North  Carolina  convention.  "  I 
mean,"  says  he,  "  the  political  relation  which  is  to  subsist  hereafter, 
between  the  state  of  North  Carolina  and  the  states  now  in  union, 
under  the  new  general  government."  Mark  these  last  words. 

Washington  to  Gouverneur  Morris,  1789  :  "  .  .  .  The  national  gov- 
ernment is  organized ;  .  .  .  opposition  to  it  is  no  more,  or  hides  its 
head ;  ...  it  is  hoped  it  will  take  strong  root,  and  that  the  non- 
acceding  states  will  soon  become  members  of  the  union." 

Washington  to  Edmund  Randolph,  Attorney-General,  February  11, 
1790,  speaks  of  an  act  which  must  "be  passed  to  extend  the  judicial 
power  of  the  united  states,  to  North  Carolina." 

Washington  to  Fenner,  governor  of  Rhode  Island,  June  14,  1790, 
congratulates  him  on  the  "  ratification  of  the  constitution  by  the  con- 
vention of  Rhode  Island,"  and  continues  :  "  Having  now  attained  the 
desirable  object  of  uniting,  under  one  general  government,  all  those 
states  which  were  originally  confederated,"  etc.,  he  then  says,  "our 
bond  of  union  is  now  complete,  and  we  are  once  more  as  one 
family." 

Washington  to  Count  De  Segur,  July  1,  1790:  "The  union  of 
states  is  now  complete,  under  the  new  government,  by  the  late  acces- 
sion of  Rhode  Island  to  the  constitution." 

Washington,  commissioning  the  Secretary  of  the  Treasury  to  borrow 
money,  August  28,  1790,  authorizes  him  "to  borrow  on  behalf  of  the 
united  states,  within  said  states  or  elsewhere,"  $14,000,000,  "and  to 
make  such  contracts  as  shall  be  necessary  and  for  the  interest  of  the 
said  states." 

Dr.  David  Stuart  writes  to  Washington,  March  10,  1792  :- 

"  A  spirit  of  jealousy,  which  may  become  dangerous  to  the  union, 
toward  the  Eastern  states,  seems  to  be  growing  fast.  It  is  repre- 
sented that  the  northern  phalanx  is  so  firmly  united  as  to  bear  down 
all  opposition,  while  Virginia  is  unsupported,  even  by  those  whose 
interests  are  similar  to  hers." 

Washington  replied,  March  20,  1792  :  "I  am  sorry  such  jealousies 
as  you  speak  of  should  be  gaining  ground  and  poisoning  the  minds 


WASHINGTON'S  POLITICAL  FAITH   (CONTINUED).        233 

of  the  Southern  people."  He  then  goes  on  to  speak  of  diversities  of 
interests  and  feelings  between  sections  and  parts  of  states  and  even 
counties.  "Yet,"  said  he,  "it  did  not  follow  that  separation  was  to 
result  from  the  disagreement.  To  constitute  a  dispute,  there  must 
be  two  parties.  To  understand  it  well,  both  parties  and  all  the  cir- 
cumstances must  be  fully  heard;  and  to  accommodate  differences, 
temper  and  mutual  forbearance  are  requisite.  Common  danger 
brought  the  states  into  confederacy,  and  on  their  union  our  safety 
and  importance  depend.  A  spirit  of  accommodation  was  the  basis  of 
the  present  constitution.  Can  it  be  expected,  then,  that  the  Southern 
or  Eastern  parts  of  the  empire  will  succeed  in  all  their  measures  1 " 
He  then  speaks  of  the  unity  or  concert  of  Eastern  states  being  likely 
to  make  them  generally  successful,  and  asks  the  question,  "  If  the 
Eastern  and  Northern  states  are  dangerous  in  union  [italics  his  own], 
will  they  be  less  so  in  separation  ?  If  self-interest  is  their  governing 
principle,  will  it  forsake  them,  or  be  governed  by  such  an  event  ?  .  .  . 
Then,  independently  of  other  considerations,  what  could  Virginia, 
and  such  other  states  as  might  be  inclined  to  join  her,  gain  by  a 
separation  1 " 

Washington  to  Hamilton,  July  29,  1792  :  — 

He  enumerates  the  objections  taken  to  the  policy  of  the  government 
and  the  interpretations  of  the  constitution,  one  of  which  is  character- 
ized as  a  disposition  evinced  by  a  certain  faction  to  disregard  the 
"  limitations  imposed  by  the  constitution  on  the  general  legislature, 
—  limitations  on  the  faith  of  which  the  states  acceded  to  that  instru- 
ment." 

Washington  to  Hamilton,  August  26,  1792  :  He  counsels  mutual 
forbearance,  conciliation,  accommodation,  "  and  such  healing  measures 
as  may  restore  harmony  to  the  discordant  members  of  the  union,  and 
the  governing  powers  of  it."  "Without  these,  I  do  not  see  how 
the  union  of  the  states  can  much  longer  be  preserved." 

Washington  to  Gouverneur  Morris,  October  20,  1792  :  — 

Speaks  of  the  Indians  being  under  "  an  influence  [British]  which  is 
hostile  to  the  rising  greatness  of  these  states." 

And  his  letter  to  the  Earl  of  Buchan,  of  April  22,  1793,  hereto- 
fore quoted,  shows  how  completely  he  was  governed  by  the  idea  of 
distinct  and  sovereign  political  bodies  self-united  :  "  I  send  you  the  plan 
of  a  new  city  about  the  centre  of  the  union  of  these  states" 

To  any  reflecting  mind,  the  last  five  letters,  as  well  as  numerous 
other  expressions,  show  that  Washington  not  only  regarded  the  union 
of  states  as  purely  voluntary,  and  motived  by  a  community  of  political 
faith  and  sentiment,  by  amity,  and  by  the  mutual  interest  of  safety, 
economy,  and  means  of  wealth  and  power,  but  that  he  thought  the 


234  FALLACIOUS  EXPOSITION. 

constitution  defective,  experimental,  and  dissoluble.  [See  his  letters 
to  Gen.  Knox  and  Gen.  Lafayette,  in  August  arid  September,  1787; 
also  the  above  quoted  one  of  September  24,  1787,  to  Patrick  Henry, 
and  others.  Nay,  more,  he  recognized  motives  or  causes  tending  to 
separation  as  likely  to  arise,  and  he  adjured  "the  people  of  these 
states,"  who,  as  commonwealths,  had  formed  "the  confederacy,"  as 
he  called  it,  to  be  conciliatory  and  compromising,  and  to  frown  down 
all  attempts  to  cause  a  separation  of  the  states. 

The  following  letters  and  extracts,  from  the  Farewell  Address, 
show  that  he  considered  good  will  and  mutual  interest  as  the  only 
ties  binding  the  states,  and  moral  suasion  as  the  only  force  to  be 
relied  on  to  prevent  the  sundering  of  those  ties.  This  must  be  so, 
for  the  convention  of  1787,  including  him,  unanimously  spurned  the 
idea  of  coercion  of  states ;  and  subsequently  the  states,  nem.  con., 
amended  the  constitution  to  prevent  even  judicial  coercion  of  states. 
[See  Amendment  XL]  The  fathers  all  thought  the  states  only  bound 
by  virtue  of  voluntary  engagements ;  and,  to  use  the  language  of 
Webster  at  the  close  of  his  life,  that  "the  constitution  is  the  only 
bond  of  the  union  of  these  states." 

Washington  to  R.  H.  Lee,  August  22,  1785  :  — 

"  There  is  nothing  which  binds  one  country  or  state  to  another  but 
interest.  Without  this  cement,  the  Western  inhabitants  can  have 
no  predilection  for  us,  and  a  commercial  connection  is  the  only  tie  we 
can  have  upon  them."  He  was  speaking  of  the  people  of  the  Ohio 
and  Mississippi  valleys. 

Washington  to  R.  H.  Lee,  July  19,  1787:  — 

"  Till  you  get  low  down  the  Ohio,  I  conceive  that  it  would  be  the 
interest  of  the  inhabitants  thereof  to  bring  their  produce  to  our  ports ; 
and  sure  I  am  there  is  no  other  tie  by  which  they  will  long  form  a 
link  in  the  chain  of  federal  union." 

Extracts  from  Washington's  Farewell  Address,  with  explana- 
tions. It  is  well  to  remark  at  the  outset  that  there  is  no  inconsistency 
between  the  address  and  the  extracts  heretofore  given.  To  promote 
"  the  happiness  of  the  people  of  these  states"  is  the  professed  object  he 
has  in  view ;  and  he  regards  the  motives  of  amity,  fraternal  feeling, 
and  mutual  interest  "  as  the  sacred  ties  which  bind  together  the  vari- 
ous parts."  And  the  presumption  is  inevitable  that,  if  he  had  fore- 
seen that  fraternal  feeling  would  give  place  to  mutual  dislike,  and 
amity  to  enmity,  he  would  have  recommended  separation  as  preferable 
to  bitter  contentions,  and  the  unrepublican  disposition  to  settle  dis- 
putes by  arms  ;  and  he  would  have  advised  resort  to  the  divine  idea  of 
secession,  as  expressed  by  Abraham  to  Lot ;  and  surely  that  could  not 
have  been  so  bad  as  the  great  American  civil  war,  —  the  curse  of  the 


WASHINGTON'S  POLITICAL  FAITH  (CONTINUED).         235 

nation  and  the  infamy  of  the  age  !  He  never  contemplated  a  union 
of  force,  —  a  union  to  be  preserved  by  coercion  of  the  component 
states,  —  and  not  a  line  he  ever  wrote  (even  in  the  farewell  address) 
is  consistent  with  such  an  idea.  The  italics  will  be  mainly  mine. 

In  the  beginning  of  the  address,  he  prays  "  that  Heaven  may  con- 
tinue to  you  the  choicest  tokens  of  its  beneficence ;  that  your  union 
and  brotherly  affection  may  be  perpetual ;  that  the  free  constitution, 
which  is  the  work  of  your  hands,  may  be  sacredly  maintained  ;  that  its 
administration  in  every  department  may  be  stamped  with  wisdom  and 
virtue ;  that,  in  fine,  the  happiness  of  the  people  of  these  states,  under 
the  auspices  of  liberty,  may  be  made  complete. 

"  The  unity  of  government,  which  constitutes  you  one  people,  is 
also  now  dear  to  you.  It  is  justly  so;  for  it  is  a  main  pillar  in  the 
edifice  of  your  real  independence,  —  the  support  of  your  tranquillity 
at  home,  your  peace  abroad,  of  your  safety,  of  your  prosperity,  of  that 
very  liberty  which  you  so  highly  prize.  But  as  it  is  easy  to  foresee 
that,  from  different  causes  and  from  different  quarters,  much  pains 
will  be  taken,  many  artifices  employed,  to  weaken  in  your  minds  the 
conviction  of  this  truth,  as  this  is  the  point  in  your  political  fortress 
against  which  the  batteries  of  internal  and  external  enemies  will  be 
most  constantly  and  actively  (though  often  covertly  and  insidiously) 
directed,  it  is  of  infinite  moment  that  you  should  properly  estimate 
the  immense  value  of  your  national  union,  to  your  collective  and  indi- 
vidual happiness." 

He  is  addressing  "  the  people  of  these  states,"  and  "  the  government  " 
—  the  "  unity  "  of  which,  he  says,  is  so  dear  to  them  —  is  the  govern- 
ment which  they  made,  acting  as  states,  and  which  necessarily  remains 
subject  to  the  wills  that  gave  it  existence.  This  is  an  argument  to 
the  people  of  states,  who,  in  imparting  or  withdrawing  power,  must 
act  according  to  the  law  of  their  political  being,  as  states.  We  have 
heretofore  seen  his  repeated  assertions  that  the  union  is  a  "con- 
federacy." 

"  While,  then,  every  part  of  our  country  thus  feels  an  immediate 
and  particular  interest  in  union,  all  the  parts  combined  cannot  fail  to 
find,  in  the  united  mass  of  means  and  efforts,  greater  strength,  greater 
resource,  proportionally  greater  security  from  external  danger,  a  less 
frequent  interruption  of  their  peace  by  foreign  nations  ;  and,  what  is  of 
inestimable  value,  they  must  derive  from  union  an  exemption  from 
those  broils  and  wars  between  themselves,  which  so  frequently  afflict 
neighboring  countries  not  tied  together  by  the  same  government,  which 
their  own  rivalships  alone  would  be  sufficient  to  produce,  but  which 
opposite  foreign  alliances,  attachments,  and  intrigues  would  stimulate 
and  embitter.  Hence,  likewise,  they  will  avoid  the  necessity  of  those 


236  FALLACIOUS   EXPOSITION. 

overgrown  military  establishments,  which,  under  any  form  of  govern- 
ment, are  inauspicious  to  liberty,  and  which  are  to  be  regarded  as 
particularly  hostile  to  republican  liberty ;  in  this  sense  it  is  that 
your  union  ought  to  be  considered  as  a  main  prop  of  your  liberty, 
and  that  the  love  of  the  one,  ought  to  endear  to  you  the  preservation 
of  the  other. 

"  These  considerations  speak  a  persuasive  language  to  every  reflect- 
ing and  virtuous  mind,  and  exhihit  the  continuance  of  the  union  as  a 
primary  object  of  patriotic  desire.  Is  there  a  doubt  whether  a  com- 
mon government  can  embrace  so  large  a  sphere  1  Let  experience  solve 
it.  To  listen  to  mere  speculation  in  such  a  case  were  criminal.  We 
are  authorized  to  hope  that  a  proper  organization  of  the  whole,  with 
the  auxiliary  agency  of  governments  for  the  respective  subdivisions, 
will  afford  a  happy  issue  to  the  experiment.  It  is  well  worth  a  fair 
and  full  experiment.  With  such  powerful  and  obvious  motives  to 
union,  affecting  all  parts  of  our  country,  while  experience  shall  not 
have  demonstrated  its  impracticability,  there  will  always  be  reason  to 
distrust  the  patriotism  of  those  who,  in  any  quarter,  may  endeavor  to 
weaken  its  bands." 

Of  course  "  the  continuance  of  the  union  "  was  "  the  primary  ob- 
ject of  patriotic  desire,"  as  long  as  it  was  the  instrument  of  "the 
people  of  these  states,"  in  preserving  their  safety  and  happiness,  and 
as  long  as  its  government  was  the  servitor  of  said  people.  But  the 
above  shows  that  it  was  undoubtedly  Washington's  view,  that  if  a  full 
and  fair  experiment  proved  that  this  "  common  government "  could 
not  "  embrace  so  large  a  sphere  "  without  defeating,  instead  of  pro- 
moting, the  object  of  government,  i.e.  "the  happiness  of  the  people 
of  these  states,"  it  might,  by  its  makers,  be  brought  to  an  end,  hav- 
ing no  iron  strength  and  eternal  existence  of  its  own,  but  only  exist- 
ing at  the  will  of  its  sovereign  creators. 

"  To  the  efficacy  and  permanency  of  your  union,  a  government  for 
the  whole  is  indispensable.  No  alliance,  however  strict,  between  the 
parts  can  be  an  adequate  substitute ;  they  must  inevitably  experience 
the  infractions  and  interruptions  which  all  alliances  in  all  time  have 
experienced.  Sensible  of  this  momentous  truth,  you  have  improved 
upon  your  first  essay,  by  the  adoption  of  a  constitution  of  government 
better  calculated  than  your  former  for  an  intimate  union,  and  for  the 
efficacious  management  of  your  common  concerns.  This  government,  the 
offspring  of  your  own  choice,  uninfluenced  and  unawed,  adopted  upon 
full  investigation  and  mature  deliberation,  completely  free  in  its  prin- 
ciples, and  in  the  distribution  of  its  powers,  uniting  security  witli 
energy,  and  containing  within  itself  a  provision  for  its  own  amend- 
ment, has  a  just  claim  to  your  confidence  and  your  support.  Respect 


UNIVERSITY 


WASHINGTON'S   POLITICAL  FAITH   (CONTINUED)? 


for  its  authority,  compliance  with  its  laws,  acquiescence  in  its 
measures,  are  duties  enjoined  by  the  fundamental  maxims  of  true 
liberty." 

In  this  quotation  we  have  further  positive  proof  that  Washington 
did  not  consider  that  there  was  "  a  change  from  a  confederation  to 
another  system ; "  for,  in  the  passage  underscored,  he  regards  the  con- 
stitution as  another  compact,  and  the  new  system  as  a  union  of  states, 
as  the  constitution  calls  it,  —  "a  more  perfect  union  "  of  the  states, 
as  the  preamble  expresses  it.  "  This  government  "  is  the  offspring  of 
our  "  own  choice."  Whose  choice  1  Whose  will  is  referred  to  1  Of 

mrse  "  the  people  of  these  states."     They  were  only  organized  and 

ipable  of  acting  as  states.  They  did  act  absolutely  as  states.  Of 
course,  then,  Washington  could  but  say,  as  he  did  in  his  letter  here- 
tofore quoted,  of  October  17,  1787,  that  the  constitution  was  a  "com- 
pact or  treaty ; "  and  as  he  did  in  his  letter,  also  heretofore  quoted,  of 
June  28,  1788,  that  the  system  proposed  was  "a  new  confederacy," 
that  is  to  say,  a  new  league  of  states,  —  a  "  more  perfect  union." 
Who  will  now  deny  that  Washington  considered  "  the  united  states  of 
America  "  a  federation  of  sovereignties  1 

His  political  principles  were  those  of  Wilson,  Dickinson,  Hamilton, 
Madison,  Jay,  and  other  leading  federalists,  who  most  elaborately 
explained  the  new  federal  system  to  the  people.  This  is  well  known 
by  all  who  understand  the  subject ;  but  to  prevent  cavil  and  evasion, 
I  will  show  his  special  adoption  of  their  theory  of  the  absolute  sove- 
reignty of  the  states  in  the  union. 

Washington  to  David  Stuart,  October  17,  1787:  "Dear  Sir, — As 
the  enclosed  Advertiser  contains  a  speech  of  Mr.  Wilson,  as  able,  candid, 
and  honest  a  member  as  was  in  the  convention,  which  will  place  the 
most  of  Colonel  Mason's  objections  in  their  true  light,  I  send  it  to  you. 
The  republication  of  it,  if  you  can  get  it  done,  will  be  serviceable  at 
this  juncture." 

The  leading  and  most  striking  parts  of  this  speech  were  as  follows : 
In  showing  that  a  bill  of  rights  was  not  needed  in  the  federal  consti- 
tution, because  not  being  given,  the  said  rights  were  reserved  already, 
he  said  :  "  It  would  have  been  superfluous  and  absurd  to  have  stipu- 
lated with  a  federal  body  of  our  own  creation,  that  we  should  enjoy 
those  privileges  of  which  we  are  not  divested,  either  by  the  intention 
or  the  act  which  has  brought  that  body  into  existence." 

Further  along,  he  said,  in  explaining  the  reason  why  the  federal  con- 
vention did  not  deal  with  subjects  already  provided  for  in  the  state 
constitutions  :  "  Let  it  be  remembered,  then,  that  the  business  of  the 
federal  convention  was  not  local,  but  general ;  not  limited  to  the 
views  and  establishments  of  a  single  state,  but  co-extensive  with 


238  FALLACIOUS  EXPOSITION. 

the  continent,  and  comprehending  the  views  and  establishments  of 
thirteen  independent  sovereignties."  [Pennsylvania  Herald,  Oct.  10, 
1787.] 

Another  Pennsylvania  statesman,  Tench  Coxe,  said  at  the  same 
time,  on  the  same  matter,  that  such  subjects  "  could  not  be  mentioned 
in  a  contract  among  sovereign  states." 

The  above  were  unquestionably  the  views  of  Washington  :  and 
strange  as  it  may  seem  to  those  who  have  been  taught  by  Story  and 
Webster,  the  fathers  took  them  for  granted,  and  acted  upon  them ; 
and  the  federal  constitution  is  entirely  based  upon  the  principles  of 
them ;  and  in  those  days  neither  friend  nor  foe  ever  called  them  in 
question. 

Washington  to  John  Vaughan,  April  27,  1788  :  "The  writer  of  the 
pieces  signed  Fabius,  whoever  he  is,  appears  to  be  master  of  the  sub- 
ject ;  ...  an  extensive  republication  of  them  would  be  of  utility,  in 
removing  false  impressions." 

Fabius  was  John  Dickinson,  who  had  been  President  of  both  Penn- 
sylvania and  Delaware.  He  was  a  member  of  the  federal  convention, 
and  was  recognized  as  one  of  the  leading  statesmen  of  that  period. 
What  were  the  views,  evincing  "  mastery  of  the  subject ; "  worthy  of 
"  extensive  republication,"  as  well  as  calculated  to  "remove  false  im- 
pressions'?" The  following  extracts  from  II.  "Political  Writings  of 
John  Dickinson,"  will  show.  The  italics  are  in  the  original. 

Speaking  of  the  danger  to  liberty,  in  the  new  system,  he  says, 
writing  early  in  1788  :  "  the  power  of  the  people,  pervading  the  whole 
system,  by  frequent  elections,  together  with  the  strong  confederation 
of  the  states,  forms  an  adequate  security  against  every  danger  that  has 
been  apprehended."  "  The  objectors  agree  that  the  confederation  of 
the  states  will  be  strong,  according  to  the  system  proposed,"  etc. 

"  They  [the  House  of  Representatives],  and  the  Senate,  will  actually 
be,  not  only  legislative,  but  also  diplomatic  bodies,  perpetually  engaged 
in  the  arduous  task  of  reconciling  in  their  determinations,  the  inter- 
ests of  several  sovereign  states." 

Speaking  of  the  danger  of  usurpation  by  the  federal  government, 
he  says,  "  the  trustees  or  servants  of  the  several  states  will  not  dare, 
if  they  retain  their  senses,  to  violate  the  independent  sovereignty  of 
their  respective  states,  THAT  JUSTLY  DARLING  OBJECT  of  American 
affection,  to  which  they  are  responsible.  But  a  bad  administration 
may  take  place  ;  what  is  then  to  be  done  1  The  answer  is  instantly 
found  :  Let  the  fasces  be  lowered  before  the  supreme  sovereignty  of  the 
people.  It  is  their  duty  to  watch,  and  their  right  to  take  care  that  the 
constitution  be  preserved ;  or  in  the  Roman  phrase,  on  perilous  occa- 
sions, to  provide  that  the  republic  receive  no  damage" 


WASHINGTON'S  POLITICAL  FAITH   (CONTINUED).        239 

"  It  is  said  such  territory  has  never  been  governed  by  a  confed- 
eracy of  republics ;  granted ;  but  where  was  there  ever  a  confederacy 
of  republics  in  such  territory,  united,  as  these  states  are  to  be,  by  the 
proposed  constitution  1 "  etc. 

"America  is,  and  will  be,  divided  into  several  sovereign  states,  each 
possessing  every  power  proper  for  governing,  within  its  own  limits,  for 
its  own  purposes,  and  also  for  acting  as  a  member  of  the  union." 

I  have  quoted  copiously,  as  John  Dickinson's  writings  are  not  acces- 
sible to  many,  and  as  they  show  Washington's  views  very  clearly  and 
forcibly. 

Let  us  now  show  his  approval  of  the  Federalist,  and  then  quote  its 
expressions :  — 

Washington  to  David  Stuart,  November  30,  1787  :  — 

After  stating  that  "some  writers  wish  to  see  this  union  divided 
into  several  confederacies,"  and  deprecating  the  idea,  he  writes  as 
follows  :  — 

"  As  an  antidote  to  these  opinions,  and,  in  order  to  investigate  the 
ground  of  objections  to  the  constitution  which  is  submitted,  the  Fed- 
eralist, under  the  signature  of  Publius,  is  written.  .  .  .  They  [the 
articles]  are  written  by  able  men,  and  before  they  are  finished,  will, 
or  I  am  mistaken,  place  matters  in  a  true  point  of  light.  Although 
I  am  acquainted  with  the  writers,  I  am  not  at  liberty  to  mention 
names ;  nor  would  I  have  it  known  that  they  [these  papers]  are  sent 
by  me  to  you  for  promulgation." 

He  was  in  the  confidence  of  the  writers ;  he  and  they  were  ardent 
federalists  ;  and  they  concurred  with  him  in  political  philosophy.  He 
often  specially  sanctioned  what  they  wrote  ;  aided  in  the  "  promulga- 
tion "  of  their  writings ;  and  in  his  subsequent  administration  of  the 
new  governmental  agency,  he  was  in  close  alliance  and  sympathy  with 
them,  personally  and  politically. 

What  then  did  Jay,  Hamilton,  and  Madison  write,  in  expression  of 
their  own  and  Washington's  views,  concerning  the  proposed  general 
polity  ? 

The  very  first  article  of  the  Federalist  indicated  the  object  to  be, 
the  continuance  of  the  union  of  states,  under  a  new  federal  government  ; 
or,  as  the  constitution  expresses  it,  "  to  form  a  more  perfect  union." 
And,  in  that,  and  the  two  or  three  articles  immediately  following,  the 
question  is  discussed  whether  there  should  be  an  association  of  states 
or  not,  and  if  yea,  whether  "three  or  four  confederacies  would  be 
better  than  one."  This  is  Jay's  expression,  and  he  elsewhere  called 
the  polity  a  "union  of  states"  and  a  "confederacy." 

In  concluding  the  great  discussion,  Hamilton  states,  in  85  of  the 
Federalist,  that,  by  the  compact  proposed,  "  thirteen  independent 


240  FALLACIOUS  EXPOSITION. 

states  were  to  be  accommodated  in  their  interests,  or  opinions  of 
interest ; "  and  that  hence  arose  the  necessity  of  making  such  a  sys- 
tem, as  would  "  satisfy  all  the  parties  to  the  compact."  And,  in  the 
same  article,  he  argues  that  the  failure  of  this  plan  would  be  a 
"dissolution  of  the  confederacy."  And  in  the  New  York  ratifying 
convention,  about  the  same  time,  he  described  the  system  provided 
for  in  the  proposed  constitution,  as  "  a  confederacy  of  states."  [II.  Ell. 
Deb.  353.] 

In  Article  39,  it  is  stated  that  "each  state,  in  ratifying  the  consti- 
tution, is  considered  as  a  sovereign  body,  independent  of  all  others, 
and  only  to  be  bound  by  its  own  voluntary  act.  In  this  relation, 
then,  the  new  constitution  will,  if  established,  be  a  federal,  and  not  a 
national  constitution."  This  is  Madison's,  italics  and  all. 

In  Article  40  Madison  continues  the  subject,  meeting  the  objection 
that  the  new  system  was  so  different  from  the  preceding  one,  that  it 
was  not  within  the  intention  of  the  states  :  "  Will  it  be  said  that  the 
fundamental  principles  of  the  confederation  were  not  within  the  pur- 
view of  the  convention,  and  ought  not  to  have  been  varied  1  I  ask, 
what  are  those  principles  1  Do  they  require  that,  in  the  establish- 
ment of  the  constitution,  the  states  should  be  regarded  as  distinct 
and  independent  sovereigns  1  They  are  so  regarded  by  the  constitu- 
tion proposed." 

Article  20  —  the  joint  production  of  Hamilton  and  Madison  — 
concludes  with  the  following  remarkable  and  decisive  passage:  "Ex- 
perience is  the  oracle  of  truth ;  and  where  its  responses  are  unequivo- 
cal, they  ought  to  be  conclusive  and  sacred.  The  important  truth 
which  it  unequivocally  pronounces  in  the  present  case  is,  that  a  sove- 
reignty over  sovereigns,  a  government  over  governments,  a  legisla- 
tion for  communities  as  contradistinguished  from  individuals ;  as  it  is 
a  solecism  in  theory,  so  in  practice  it  is  subversive  of  the  order  and 
ends  of  civil  polity,  by  substituting  violence  in  the  place  of  law ;  or 
the  destructive  coercion  of  the  sword,  in  the  place  of  the  mild  and 
salutary  coercion  of  the  magistracy" 

All  the  numbers  of  the  Federalist,  and  all  of  Washington's  writ- 
ings, are  consistent  with  the  above  passages.  The  extract  from 
Article  20  is  one  of  the  numerous  decisive  proofs  that  the  states  were 
never  intended  to  be  subject  to  the  government ;  for  they  were  the 
sources  of  all  power  —  were  republics,  i.  e.  self-governing  states.  And 
it  is  amazing  that  anybody  should  ever  have  been  inconsiderate  or 
wicked  enough  to  say  that  the  states  are  subject  to  their  own  com- 
pact, and  the  government  they  created  by  it.  Yea,  verily,  it  is  a 
solecism,  as  Hamilton  and  Madison  above  say,  to  talk  of  "a  sove- 
reignty over  sovereigns,  a  government  over  governments,  a  legislation 


WASHINGTON'S  POLITICAL  FAITH   (CONTINUED).        241 

for  communities  as  contradistinguished  from  individuals."  And  it 
shows  either  ignorance  of  history,  or  suppressio  veri,  for  expositors  of 
the  constitution  to  deny  that  the  states  purposely  excluded  coercion 
of  states  from  the  compact;  and  afterwards  nem.  con.,  provided  by 
Amendment  XI.  against  even  judicial  federal  coercion  of  them. 

We  find,  then,  from  Washington's  own  expressions,  his  views  to 
have  been  that  the  states  "  established "  the  union ;  that  the  instru- 
ment providing  for  it  is  the  "  compact  or  treaty  "  of  the  states;  that  the 
object  accomplished  was  the  forming  of  "a  new  confederacy"  i.  e. 
"  a  more  perfect  union  "  of  the  states,  than  the  previous  pact  pro- 
vided for ;  and  that  the  states  were  not  only  voluntary  parties  to,  but 
they  were  to  be  voluntary  actors  in,  the  union. 

Washington  always  took  it  for  granted,  that  the  states  were  sove- 
reign bodies  of  people ;  and  that  the  federal  compact,  and  the  agency 
created,  were  simply  the  instrumentalities  of  the  states  for  self-gov- 
ernment, and  remained  of  course  subordinate  to  them. 

Now,  in  order  to  see  Washington's  clearness  and  breadth  of  view, 
and  his  admirable  consistency  throughout,  let  us  glance  back  at  his 
statement  of  the  great  political  desiderata  for  our  country,  in  his  cir- 
cular letter  to  the  governors  of  the  states  in  1783,  on  the  occasion  of 
his  laying  down  his  office  as  Commander-in-Chief :  — 

1.  A  "union  of  the  states  under  one  federal  head." 

2.  A  "sacred  regard  for  public  justice." 

3.  A  proper  peace  establishment. 

4.  The  cultivation  of  friendly  feelings  among  all  the  people  of  the 
country,  etc. 

Washington  never  lost  sight  of  these  objects ;  he  always  took  it  for 
granted  that  the  states  were  the  sole  actors  in  federalizing  themselves; 
and  he  finally  had  the  satisfaction  to  see  the  work  done  precisely  as 
he  forecasted.  The  thoughtful  reader  cannot  fail  to  see  that  Wash- 
ington was  much  more  admirable  as  a  statesman  and  political  philoso- 
pher, than  is  commonly  supposed. 

16 


CHAPTEE  XII. 
VERBAL  JUGGLERY. 

AFTER  contrasting  the  doctrines  of  "  the  two  Washingtons,"  it  is 
well  to  bring  to  view,  in  the  same  line  of  investigation,  the  two 
sets  of  so-called  definitions  of  Noah  Webster,  as  to  the  matter  in  hand, 
—  one  genuine  and  the  other  counterfeit. 

With  sapping  and  mining  industry,  equal  to  that  of  a  species  of 
rodent  vermin,  and  quite  as  difficult  to  follow  and  counteract,  a  cer- 
tain class  of  teachers  and  leaders  have  undermined  to  its  ruin  the 
sacred  temple  of. constitutional  freedom.  Unfortunately  they  and  their 
disciples  or  followers  mainly  control  the  political  propagators,  print, 
press,  publishers,  politicians,  and,  in  short,  the  most  of  the  means  of 
political  teaching  in  the  whole  land. 

Strategic  Exposition. —  In  1830-3,  Daniel  Webster  abandoned 
his  previous  and  sound  constitutional  views ;  and  he  is  charged  with 
having,  in  the  great  controversy  of  that  time,  played  most  skilfully 
"  with  double  sences  and  with  false  debate."  But  I  presume  that  his 
errors  were  a  part  of  his  faith,  and  that  his  incorrect  facts  and  un- 
sound premises  were  based  upon  the  data  furnished  him  by  others. 
At  all  events  —  standing  on  the  plane  of  his  noble  efforts  in  behalf  of 
the  union  —  we  go  down  a  steep  and  long  declivity  to  reach  the  artifices 
now  to  be  exposed. 

Said  he,  in  his  speech  of  1833,  "Words  are  things  .  .  .  of  mighty 
influence;  because  a  just  conclusion  is  often  avoided,  or  a  false  one 
reached,  by  the  adroit  substitution  of  one  phrase  or  one  word  [or  he 
might  have  said  one  definition]  for  another."  He  evidently  saw  that 
even  the  strongest  logical  position  in  any  argument  could  be  turned, 
by  changing  the  definitions  of  the  chief  words  of  it,  and  having  them 
accepted  as  "public  convictions." 

And  a  minority  politician,  in  the  early  part  of  the  present  century, 
is  said  to  have  remarked,  in  substance  :  "  The  terms  are  against  us, 
but  their  meanings  are  subject  to  usage."  Sophists  seem  to  have 


VERBAL  JUGGLERY.  243 

accepted  these  hints,  and  labored  assiduously  ever  since  to  produce  a 
desired  usage,  and  a  "  public  conviction  "  of  new  and  false  meanings, 
tending  towards,  if  not  powerfully  aiding,  consolidation  and  imperial- 
ism. Many  an  "  adroit  substitution  "  has  since,  with  flagitious  cun- 
ning, been  made,  —  the  latest,  most  conspicuous,  and  most  banefully 
influential  being  the  counterfeit  definitions,  which  are  the  subject  of 
this  chapter,  and  which  are  coined  and  circulated  throughout  the  land 
as  Noah  Webster's. 

Phrasing  the  process  to  be  exposed,  as  I  do  above,  is  dignifying  it ; 
for  it  is  the  appending  of  Noah  Webster's  most  venerated  and  poten- 
tial name  to  declarations  of  fact  and  opinion,  directly  and  flagrantly 
opposed  to  his  life-long  view's,  and  "  passing  the  counterfeits  "  as  his 
statements. 

We  early  learn  the  meanings  of  the  leading  words,  Which  affect  all 
the  affairs  of  life.  They  are  often  of  vital  moment.  If,  after  putting 
our  rights  in  language,  we  find  the  definitions  of  our  words  changed, 
we  may  suffer  great  wrong  without  remedy.  The  discovery  may 
sometimes  amuse  us, —  much  as  "  thimble-rig  "  would, —  but  we  must 
ever  have  the  bitter  reflection  that  this  sapping  and  mining  process 
affects  alike  our  language  and  our  polity,  and  that  the  poison  of  error 
is  imbibed  as  truth  by  the  generation  to  which  we  owe  the  supreme 
duty  of  teaching  sound  principles,  and  the  sacred  verities  of  our  con- 
stitutional freedom. 

The  American  "  Old  Man  of  the  Mountain."  —  If  the  "  school  " 
is  responsible  for  the  foregoing  deceptions,  and  the  sophistries  yet  to 
be  exposed,  have  we  not  found  the  American  "  Sheik  al  Gebel,"  —  the 
"  Chief  of  the  Assassins  "  of  liberty  1  The  honor  and  conscience  of 
perverters  in  general  are  estimated,  and  the  character  of  them  por- 
trayed by  Gouverneur  Morris,  the  statesman,  as  follows:  "But,  after 
all,  what  does  it  signify  that  men  should  have  a  written  constitution, 
containing  unequivocal  provisions  and  limitations.  The  legislative 
lion  will  not  be  entangled  in  a  logical  net.  The  legislature  will  always 
make  the  power  which  it  wishes  to  exercise.  .  .  .  The  idea  of  binding 
the  members  by  oaths  is  puerile.  Having  sworn  to  exercise  the  powers 
granted,  according  to  their  true  intent  and  meaning,  they  will,  when 
they  desire  to  go  further,  avoid  the  shame,  if  not  the  guilt,  of  perjury, 
by  swearing  the  true  intent  and  meaning  to  be  (according  to  their 
comprehension)  that  which  suits  their  purpose."  [III.  Life  of  Morris, 
letter  dated  Dec.  22,  1814.] 

Noah  Webster's  real  Doctrines.  —  Noah  Webster  died  in  1843, 
aged  eighty-five,  after  having  attained  the  first  rank  of  great  Ameri- 
cans. He  was  one  of  the  ablest  and  most  efficient  of  those  eminent 
patriots  called  "  the  fathers,"  who  devised  the  new  federal  system  and 


244  FALLACIOUS   EXPOSITION. 

secured  its  adoption.  In  1 784-5,  he  wrote  and  published  his  "Sketches 
of  American  Policy,"  advocating  a  general  government  that  should 
act,  not  on  states,  but  directly  on  individuals,  just  as  the  state  govern- 
ments did,  and  should  possess  powers  to  effectuate  its  laws  in  like 
manner.  When  the  federal  system  of  1787  was  devised,  he  published 
in  its  favor  "  An  Examination  of  the  Leading  Principles  of  the  Federal 
Constitution,"  and  in  the  American  Magazine,  founded  and  edited 
by  him  in  1787-8,  he  monthly  and  most  ably  exposed  the  essential 
ideas  and  traits  of  the  system.  I  now  present  some  extracts,  not  only 
to  show  the  deceptions  referred  to,  but  to  instruct  the  people  as  to 
their  real  federal  polity,  and  exhibit  to  them,  in  compendious  form, 
this  great  man's  abiding  political  faith.  "  The  whole  body  of  people 
in  society  is  the  sovereign  power  or  the  state,  which  is  called  the  body- 
politic.  Every  man  forms  a  part  of  this  state,  and  so  has  a  share  in 
the  sovereignty ;  at  the  same  time,  as  an  individual,  he  is  a  subject  of 
the  state."  [Am.  Mag.  Dec.  1787.] 

The  States  above  Constitutions  of  Government.  —  "  The  indi- 
viduals who  compose  a  political  society  or  state,  have  a  sovereign  right 
to  establish  what  form  of  government  they  please  in  their  own  terri- 
tory." [Ibid.] 

In  the  number  for  January,  1788,  he  said  :  ".  .  .  No  constitutions 
in  a  free  government  can  be  unalterable.  ...  A  state  is  a  supreme 
corporation  that  never  dies.  Its  powers,  when  it  acts  for  itself,  are  at 
all  times  equally  extensive,  and  it  has  the  same  right  to  repeal  a  law 
this  year  as  it  had  to  make  it  the  last.  If,  therefore,  our  posterity  are 
bound  by  our  constitutions,  and  can  neither  amend  nor  annul  them, 
they  are  to  all  intents  and  purposes  our  slaves.  .  .  .  We  have  no 
right  to  say  that  our  posterity  shall  not  be  judges  of  their  own  cir- 
cumstances. The  very  attempt  to  make  perpetual  constitutions  is 
the  assumption  of  the  right  to  control  the  opinions  of  future  genera- 
tions, and  to  legislate  for  those  over  whom  we  have  as  little  authority 
as  we  have  over  a  nation  in  Asia." 

The  Aim  is  to  preserve  the  States  complete.  —  He  said  in  reply 
to  objections,  that  "  the  federal  constitution  will  preserve  our  equal 
republican  forms  of  government ;  nay,  that  it  is  their  only  firm  sup- 
port, and  the  guaranty  of  their  existence."  [Ibid.] 

The  object  universally  held  in  view  was  the  preserving  of  the  states 
intact ;  and  numerous  quotations  of  similar  tenor  to  the  following,  from 
Chancellor  Livingston,  in  the  New  York  ratifying  convention,  could 
be  quoted  :  "  Our  existence  as  a  state  depends  on  a  strong  and  efficient 
federal  government." 

Just  so  Noah  Webster  considered  the  absolute  preservation  of  the 
states  to  be  the  object  of  their  union,  as  will  be  seen  in  the  following 


VERBAL  JUGGLERY.  245 

extract  from  his  aforesaid  "Examination,"  etc.  The  italics  are  his. 
"  The  states,  in  their  separate  capacity,  cannot  provide  for  the  common 
defence ;  nay,  in  case  of  a  civil  war,  a  state  cannot  secure  its  own 
existence."  He  continues  that  it  is  necessary  for  them  "  to  unite  and 
provide  for  the  common  defence  and  general  welfare,"  and  that  hence 
"  a  power  over  the  whole  united  states,  adequate  to  these  general  pur- 
poses," should  be  constituted.  "  But,"  continued  he,  "  the  states,  by 
granting  such  power,  do  not  throw  it  out  of  their  own  hands ;  they  only 
throw  each  its  proportion  into  a  common  stock ;  they  merely  combine 
the  powers  of  the  several  states  into  one  point,  where  they  must  be 
collected  before  they  can  be  exerted.  But  the  powers  are  still  in 
their  own  hands,  and  cannot  be  alienated  till  they  create  a  body  inde- 
pendent of  themselves,  with  a  force  at  its  command  superior  to  the 
whole  yeomanry  of  the  country."  [New  Haven  Gazette,  Nov.  29, 
1787.] 

As  to  the  equality  and  supremacy  of  the  states  in  the  union,  he 
said,  in  the  first  number  :  "  The  equality  of  representation,  which  was 
the  result  of  compromise  and  mutual  concessions,  establishes  the  equal 
sovereignty  of  each  state."  [Am.  Mag.,  Dec.  1787.] 

In  showing  that  a  bill  of  rights  was  not  needed  in  the  federal  con- 
stitution, he  said  :  "  A  bill  of  rights  against  the  encroachments  of  kings 
and  barons,  or  against  any  power  independent  of  the  people,  is  perfectly 
intelligible ;  but  a  bill  of  rights  against  the  encroachments  of  an  elec- 
tive legislature,  that  is,  against  our  own  encroachments  on  ourselves, 
is  a  curiosity  in  government."  [Ibid.]  In  other  words,  we  want  no 
bill  of  rights  from  an  agency  we  have  created,  and  that  has  neither 
existence  nor  power  that  we  do  not  give  to  it,  as  such  agency,  to  use 
for  us. 

Electees  and  Agents.  —  Noah  Webster,  in  common  with  all  the 
fathers,  regarded  all  federal  officials  (i.  e.  the  whole  federal  government) 
as  electees  and  agents  of  the  states. 

In  a  later  number  than  the  last  mentioned,  in  reviewing  the  papers 
of  the  Federalist,  then  currently  appearing,  he  spoke  of  the  election 
of  representatives  by  the  separate  people  of  the  states ;  of  each  state 
endowing  its  own  voters ;  of  the  appointment  of  senators  by  the  state 
legislatures ;  and  of  the  appointment,  by  the  states,  of  electors  for  the 
President. 

In  February,  1788,  he  wrote  that  "the  representative  of  a  people 
is,  as  to  his  powers,  in  the  situation  of  an  attorney,  whose  letters  com- 
mission him  to  do  everything  which  his  constituent  could,  were  he  on 
the  spot." 

A  Compact  and  a  Constitution.  —  The  federal  instrument  in- 
volves a  compact,  because  it  has  the  assent  of  several  wills,  and  a 


246  FALLACIOUS  EXPOSITION. 

constitution  of  government,  because  it  provides  for  constituting  or 
establishing  and  empowering  the  said  government.  In  a  subsequent 
number,  he  cited  Montesquieu's  admission  to  prove  that  "  a  confedera- 
tion of  republics  may  be  so  formed  as  to  unite  the  happiness  of  free 
states  with  the  vigor  of  monarchies.  The  new  constitution  may  be 
an  improvement  on  the  Lycian  league,  which  that  writer  proposes  as  a 
model." 

And  he  quotes  and  agrees  with  Hamilton,  in  number  85  of  the 
Federalist,  that,  in  forming  a  "constitution  of  the  united  states," 
"  thirteen  independent  states  are  to  be  accommodated  in  their  interests 
or  opinions  of  interest,"  "  in  such  a  manner  as  to  satisfy  all  the  parties 
to  the  compact" 

He,  like  Washington,  Livingston,  Hamilton,  Madison,  and  all  the 
leading  fathers,  considered  that  a  league  of  states  was  being  formed  by 
the  federal  instrument ;  that  they  were  to  govern  themselves  as  re- 
publics ;  that  their  federal  agency  was  to  have  no  unwritten  powers ; 
and  that  they  were  to  keep  all  they  did  not  express ;  and  in  the  sub- 
sequent numbers,  he  publishes  the  states'  approvals  and  ratifications, 
that  made  them  a  "  union  of  states,"  or  "  united  states,"  as  they  called 
themselves. 

Noah  Webster  never  changed.  —  In  these  views,  he  was  con- 
sistent through  a  life  spent  in  profound  study  of  such  subjects,  — 
i.  e.  for  more  than  fifty  years.  All  his  definitions  precisely  conform  to 
them.  The  American  people  and  all  coming  generations  could,  in  his 
great  dictionary,  learn  not  only  the  true  meaning  of  all  the  "  mighty 
words  "  in  which  American  political  history  and  philosophy,  the  con- 
stitution and  the  debates  on  it,  were  written,  but  the  true  exposition 
of  that  institutional  freedom  which  was  the  peculiar  boast  and  pride 
of  the  leagued  or  associated  states  or  peoples  of  America. 

The  "  Adroit  Substitutions  "  in  Webster's  Dictionary.  —  With 
much  painstaking  and  ingenuity,  false  definitions  have  been  coined 
and  substituted  for  those  of  Noah  Webster,  as  to  all  the  important 
political  and  constitutional' words  of  his  dictionary.  In  contrasting 
the  true  with  the  false,  the  former  will  be  those  of  1844,  the  year 
after  his  death,  and  the  latter  those  of  1864.  The  first  column  will 
exhibit  the  correct  and  beautiful  theory,  as  held  by  all  the  fathers, 
of  the  American  sisterhood  of  states,  —  that  association  of  "  moral 
persons,"  who  agreed,  for  strength,  safety,  convenience,  economy,  and 
united  wisdom,  to  join  their  authority,  intellects,  wills,  and  power,  in 
federal  self-government ;  while  the  other  shows  the  double  fraud  of 
representing  the  united  states  to  be  a  state,  the  states  to  be  counties 
or  provinces,  and  the  vicarious  government  to  be  a  sovereign  with  ab- 
solute supremacy ;  and  ascribing  such  wickedness  and  folly  to  the 


VERBAL  JUGGLERY.  247 

revered  lexicographer,  all  of  whose  writings  and  definitions,  through 
a  long  life,  give  to  such  theory  direct  contradiction.  The  italics  will 
mainly  be  my  own. 

Let  us  begin  with  the  definition  of 

SOVEREIGNTY. 

In  the  edition  of  1844  it  is  as  fol-        [Of  course  no  material  change  of 

lows  :  —  the  definition  of  a  superlative  word 

"SOVEREIGN,  a.  Supreme  in  pow-  could  have  been  ventured  on.     The 

er ;    possessing   supreme   dominion  ;  "  play  with  double  sences,"  however, 

as  a  sovereign  prince.  will  be  seen  in  the  frequent  use  of 

"  SOVEREIGN,    n.    A  supreme  lord  the  word  in  the  sense  of  government, 

or  ruler;  one  who  possesses  the  high-  as  well  as  supreme  political  authority. 

est  authority,  without  control.  As  sovereignty  is  in  "  the  people,"  it 

"  SOVEREIGNTY,  n.   Supreme  pow-  cannot  be  in  the  elected  rulers.] 
er ;    supremacy  ;    the  possession    of 
the  highest  power,  or  of  uncontrol- 
lable power." 

Of  course  only  sovereignties  could  compact  in  the  premises,  consti- 
tute government  over  their  subjects,  and  delegate  their  powers  to  be 
used  in  ruling  them. 

After  the  revolution,  "  the  people  "  were  the  distinct  bodies-politic, 
or  "  moral  persons,"  who  acted  in  every  political  movement.  Their 
individuality  and  entireness  of  body,  mind  and  will  as  commonwealths, 
must  have  continued  till  the  end  of  their  joint  act  of  federation ;  and 
hence  they  could  not  be  less  than  sovereign  in  the  union.  In  asso- 
ciating, they  earnestly  and  exclusively  contemplated  and  sought  self- 
preservation,  and  no  sign  of  any  consent  to  a  change  of  character  or 
authority  is  to  be  found  anywhere.  The  sovereignties  could  but  be 
the  communities  existing  after,  just  as  they  did  before,  the  general 
government  was  constituted. 

Let  us  now  see  the  definitions  of  1844  and  1864  in  contrast. 

"STATE,"  "COMMONWEALTH,"  AND  "REPUBLIC." 

In  the  edition  of  1844  is  to  be  In  the  edition  of  1864  is  to  be 

found  the  following  :  —  found  the  following  :  — 

"  STATE,  n.  A  political  body  or  "  STATE,  n.  In  the  United  States 
body-politic  :  the  whole  body  of  the  one  of  the  commonwealths  or  bodies- 
people  united  under  one  government,  politic,  the  people  of  which  make  up 
whatever  may  be  the  form  of  gov-  the  body  of  the  nation,  and  which, 
ernment.  '  Municipal  law  is  a  rule  under  the  national  constitution,  stand 
of  conduct  prescribed  by  the  supreme  in  certain  specified  relations  with  the 
power  in  a  state.'  —  BlacJcstone.  More  national  government,  and  are  in- 
usually,  the  word  signifies  a  politi-  vested  as  commonwealths,  with  full 


248 


FALLACIOUS   EXPOSITION. 


power  in  their  several  spheres  over 
all  matters  not  expressly  inhibited." 

[The  sophists  who  made  up  the 
edition  of  1864,  feeling  responsible 
for  the  "  public  convictions  "  hereto- 
fore noticed,  and  perceiving  that  the 
former  definitions  of  "state,"  "com- 
monwealth "  and  "  republic  "  exhib- 
ited the  states  as  distinct  bodies,  not 
only  in  making  the  union,  but  in 
existence  afterwards,  and  that  the 
giving  of  "  Massachusetts "  and 
"  Great  Britain  "  as  precisely  similar 
instances,  was  fatal  to  the  theory 
upon  which  the  said  "  public  con- 
victions "  were  based,  carefully  left 
out  the  instances,  and  changed  such 
portions  of  the  definitions  as  they 
thought  militated  against  their  the- 
ory.] 


cal  body,  governed  by  representa- 
tives ;  a  commonwealth,  as  the  states 
of  Greece  ;  the  states  of  America." 

"  COMMONWEALTH,  n.  An  estab- 
lished form  of  government  or  civil 
polity  ;  or  more  generally  a  state  ; 
a  body-politic,  consisting  of  a  certain 
portion  of  men,  united  by  compact, 
or  tacit  agreement,  under  one  form  of 
government  and  system  of  laws.  A 
commonwealth  is  properly  a  free 
state ;  a  popular  or  representative 
government ;  a  republic  ;  as  the  com- 
monwealth of  Massachusetts.  The 
word  signifies,  strictly,  the  common 
good  or  happiness  ;  and  hence  the 
form  of  government  supposed  best  to 
secure  the  public  good."  [It  is  fur- 
ther stated  that  the  term  is  applied 
to  Great  Britain  and  other  bodies- 
politic,  whose  forms  of  government 
are  considered  as  free  or  popular.] 

In  the  same  edition  is  the  follow- 
ing: "REPUBLIC,  n.  A  common- 
wealth ;  a  state,"  etc. 


Noah  Webster  then  makes  no  distinction  between  ours  and  foreign 
states.  Neither  does  the  constitution.  [See  Art.  III.,  §  2,  and 
Amendment  XI.]  A  state,  nation,  or  power  is  distinct  in  existence, 
independent  in  authority,  and  without  a  superior.  If  one  of  our 
communities  is  a  state  at  all,  she  is  sovereign.  If  less  than  a  state, 
she  is  a  county  or  province,  and  is  remanded  to  colonial  or  provincial 
vassalage.  Hence  we  see  that  Noah  Webster,  like  all  the  fathers, 
teaches  that  the  states  are  commonwealths,  distinct,  independent,  and 
sovereign  in  mind  and  will ;  and  he  assumes  that  they  could  neither 
politically  exist,  nor  politically  act,  in  any  other  form,  and  hence  that 
they  could  be  associated  only  by  &foedus,  and  as  a  federation.  Doubt- 
less he  considered  it  as  absurd  to  think  of  consolidating  thirteen  moral 
persons  or  states  into  one,  as  it  would  be  to  weld  thirteen  natural 
persons  into  a  giant ! 

COMPACT    AND    CONSTITUTION. 

In  the  edition  of  1844  is  the  fol-  In  the  edition  of  1864  is  the  fol- 
lowing :—  lowing:  — 

"  COMPACT,  n.  An  agreement ;  a  "  COMPACT,  n.  An  agreement  be- 

contract  between  parties ;  a  word  tween  parties ;  a  covenant  or  con- 


VERBAL  JUGGLERY.  249 

that  may  be  applied  in  a  general   tract,  either  of  individuals  or  of  na- 
sense  to  any   covenant  or   contract   tions."      [The   rest    of    the    former 
between  individuals  ;  but  it  is  more   definition  is  suppressed.] 
generally  applied  to  agreements  be- 
tween nations  and  states,  as  treaties 
and  confederacies.      So  the  constitu- 
tion of  the  United  States  is  a  political 
contract  between  the  states,"  etc. 

"CONSTITUTION,    n.      The   estab-       "CONSTITUTION,    n.    The  princi- 
lished  form  of  government  in  a  state,   pies  or  fundamental  laws  which  gov- 
kingdom,  or  country ;   a  system   of  ern  a  state,  or  other  organized  body 
fundamental    rules,    principles,    and   of  men,  and  are  embodied  in  written 
ordinances  for  the  government  of  a   documents,  or  implied  in  the  institu- 
state  or  nation.     In  free  states,  the   tions  and  usages  of  the  country  or 
constitution  is  paramount  to  the  stat-    society." 
utea   or  laws  enacted   by  the  legis- 
lature, limiting  and   controlling  its 
power  ;  and  in  the  United  States  the 
legislature  is  created,  and  its  powers 
designated  by  the  constitution." 

In  the  above  two  definitions,  Noah  Webster  says  the  states  are 
joined  by  their  own  wills,  in  "a  political  contract  between  the  states," 
in  which  they  constituted  the  government ;  that  "  the  legislature 
[i.  e.  congress]  is  created,  and  its  powers  designated,  by  the  constitu- 
tion : "  and  that  this  "  constitution  is  paramount  to  the  statutes  or 
laws  enacted  by "  congress,  and  "  limits  and  controls  its  power." 
Hence  he  teacbes  that  "the  constitution  of  the  *  states,"  and  "  the 
government "  it  constitutes,  are  subject  to  the  states.  Sufficient  proof  is 
found  in  the  frauds  bere  exposed,  to  show  that  the  perverters  them- 
selves understood  his  teachings  so,  did  not  dare  to  let  them  remain, 
and  made  the  changes  in  the  hope  of  deceiving  "  the  people." 


DELEGATION  AND  DELEGATE. 

In  the  edition  of  1844  is  the  fol-        In  the  edition  of  1864  is  the  fol- 
lowing :  —  lowing :  — 

"  DELEGATION,     n.      A    sending       "  DELEGATION,    n.    ...   2.  One 
away  ;   the  act  of  putting  in  com-  or  more  persons  deputed  to  represent 
mission,  or  investing  with  authority  others,  as  in  a  convention,  in  con- 
to  act  for  another ;  the  appointment  gress,  etc.  ;    as  the  delegation  from 
of  a  delegate.     2.  The  persons  de-  Massachusetts." 
puted  to  act  for  another,  or  for  others. 
Thus  the  representatives  of  Massa- 
chusetts in  congress  are   called  the 
delegation,  or  whole  delegation. 


250  FALLACIOUS  EXPOSITION. 

"  DELEGATE,  v.  t.    To  send  away  ;       [The  definitions  of  these  two  words 
appropriately  to  send  on  an  embassy  ;    are  not  much  changed,  except  in  sup- 
to  send  with  power  to  transact  busi-   pressing  the  truth,  that  the  members 
ness  as  a  representative.     2.  To  en-    of  congress  are  "  the  representatives  of 
trust ;     to    commit ;    to    deliver    to    Massachusetts  in  congress"] 
another's   care  and   exercise;    as  to 
delegate   authority   or  power  to   an 
envoy,  representative  or  judge." 

In  these  definitions,  Noah  Webster  keeps  republicanism  in  view  ; 
the  republics,  i.  e.  "  the  people,"  are  to  govern  themselves  through 
their  agents,  who,  being  their  citizens,  are  their  subjects  and  servants. 
These  are  the  government,  and  the  powers  they  as  rulers  wield,  must 
be  "  delegated  "  or  entrusted,  and  the  government  must  be  a  created 
agency,  with  derivative  authority,  and  cannot  be  anything  else. 

Moreover,  he  says  that  the  members,  both  of  the  senate  and  of 
the  lower  house  of  congress,  are  "  the  delegation  "  of  a  state,  repre- 
senting it  as  such.  [See  also  the  definition  of  "  congress,"  infra."] 
The  states,  then,  are  self-ruling  commonwealths  associated  —  "  states 
united,"  to  use  his  own  phrase  ;  and  the  general  legislature  is  a  con- 
gress of  states.  [See  "  congress,"  infra.] 

If  this  was  not  Noah  Webster's  theory,  why  should  the  direct  oppo- 
site of  it  be  now  foisted  into  his  definitions,  while  all  his  statements 
and  illustrations  that  support  said  theory,  are  suppressed  ? 

UNION,    AND    E    PLURIBUS    UNUM. 

In  the  edition  of  1844  is  the  fol-  In  the  edition  of  1864  is  the  fol- 
lowing :  —  lowing  :  — 

"  UNION,  n.  7.  States  united.  "  UNION,  n.  3.  That  which  is 
Thus  the  united  states  are  some-  united  or  made  one  ;  something 
times  called  the  union.  formed  by  a  combination  or  coali- 

tion of  parts  or  members  ;  a  confed- 
eration ;  a  consolidated  body ;  as  the 
united  states  of  America  are  often 
called  the  union. 

"  E  PLURIBUS  UNUM.  One  com-  "  E  PLURIBUS  UNUM.  One  out  of 
posed  of  many.  The  motto  of  the  many.  One  composed  of  many  ;  the 
United  States,  consisting  of  many  motto  of  the  United  States,  as  being 
states  confederated"  one  government  formed  of  many  in- 

dependent states." 

Here  we  find  that  Noah  Webster  declared  the  "  union "  to  be 
"states  united"  —  "  many  states  confederated ;  "  but  that  after  his 
death,  his  name  was  affixed  to  the  untruth,  that  "union"  means 
"  a  consolidated  body  ;  as,  the  united  states  are  often  called  the  union  ;  " 
and  to  the  gross  absurdity,  that  E  jjluribus  unum  means,  in  substance, 


VERBAL  JUGGLERY.  251 

that  several  formerly  independent  states  are  consolidated    into  one 
government,  and  are  no  longer  independent  states,  but  provinces. 

FEDERAL,  FEDERALIZE,  CONFEDERATION. 

In  the  edition  of  1844  is  the  fol-  In  the  edition  of  1864  is  the  fol- 
lowing :  —  lowing  :  — 

"FEDERAL,  a.  From  Latin  fadus,  "FEDERAL,  a."  [Then  follows  the 
a  league.  1.  Pertaining  to  a  league  substance  of  the  old  definition,  except 
or  contract ;  derived  from  an  agree-  that  the  words  "  founded  on  alliance 
ment  or  covenant  between  parties,  par-  by  contract  or  mutual  agreement ;  as, 
ticularly  between  nations.  2.  Con-  a  federal  government,  such  as  that  of 
sisting  in  a  contract  between  par-  the  United  States,"  are  left  out.] 
ties,  particularly  and  chiefly  between  "  2.  Specifically,  composed  of  states 
states  or  nations  ;  founded  on  alliance  or  districts,  which  retain  only  a  sub- 
by  contract  or  mutual  agreement ;  as  ordinate  and  limited  sovereignty,  as 
a  federal  government,  such  as  that  of  the  union  of  the  United  States,  or 
the  United  States"  the  Sonderbund  of  Switzerland :  con- 

stituting or  pertaining  to  such  a  gov- 
ernment as  the  federal  constitution," 
etc. 

"  FEDERALIZE.  v.  t.  or  i.  To  unite 
in  compact  as  different  states  ;  to  con- 
federate for  political  purposes.  —  Bar- 
low. 

"CONFEDERATION,    n.    1.  The  act       [In  the  edition  of  1864  the  second 
of  confederating  ;  a  league ;  a  com-   of    the    opposite    definitions  is  left 
pact   for  mutual   support ;   alliance,    out.] 
particularly  of    princes,   nations,   or 
states.      2.  The   United    States    are 
sometimes  called  the  confederation" 

Here  again  we  find  Noah  Webster,  like  Washington,  Livingston, 
Hamilton,  Madison,  and  other  leading  fathers,  teaching  that  the  union 
was  a  league  or  federation  of  states,  and  the  editors  of  the  later  edition 
unwarrantably  changing  his  doctrines. 

CONGRESS. 

In  the  edition  of  1844  is  the  fol-  In  the  edition  of  1864  is  the  fol- 
lowing :  —  lowing  :  — 

"  CONGRESS,  n.    4.  The  assembly  "  CONGRESS,  n.   .  .  .   The  assem- 

of  senators  and  representatives  of  the  bly  of  senators  and  representatives  of 

several  states  of  North  America,  ac-  the  people  of  a  nation,  especially  of  a 

cording  to  the  present  constitution  or  republic,  for  the  purpose  of  enacting 

political  compact,  by  which  they  are  laws,  and  considering  matters  of  na- 

united  in  a  federal  republic;  the  legis-  tional  interest  and    constituting    the 

lature  of  the  United  States,  consisting  chief  legislative  body  of  a  nation" 
of  two  houses,  a  senate  and  house  of 
representatives.  ..." 


252  FALLACIOUS   EXPOSITION. 

I  use  the  italics  in  all  the  above  extracts  to  increase  the  force  of  the 
contrast.  But  comment  will  be  dispensed  with,  because  it  could  add 
nothing  to  the  exposition.  Look  on  this  picture,  and  on  this  !  The 
true  one  is  a  federal  congress  [from  congredi,  to  come  together]  of 
states,  legislating  for  their  subjects;  and  the  base  counterfeit  and 
caricature  presents  a  national  legislature  as  sovereign  over  a  nation 
of  people. 

The  Sum  of  Noah  Webster's  Views. —  Here,  then,  are  Noah 
Webster's  teachings,  which  he  fondly  thought  he  had  embalmed  in  the 
magnum  opus  of  his  life,  as  a  sacred  historical  testimony  and  bequest 
to  his  countrymen  :  — 

1.  American  political  sovereignty,  which  is  unlimited  authority  over 
everything  in  the  state  or  nation,  resides  always  in  the  peoplev 

2.  They  politically  exist  and  politically  act  only  as  republics  or  com- 
monwealths, called  states.     These  are  equals  and  sovereigns,  and  are 
subject  to  no  political  authority  whatever. 

3.  They,  as  such,  confederated,  and  thus  formed  a  "  union  of  states," 
called  "  the  united  states ; "  but  made  no  change  in  themselves,  either 
in  being  or  authority. 

4.  They,  as  such,  constituted  governments,  each  its  own  and  all  their 
general  one. 

5.  To  these,  their  creations,  they  "  delegated,"  —  that  is  to  say,  they 
entrusted,  —  not  their  sovereignty  or  right  to  govern  all  persons  and 
things  in  their  territory,  but  "powers  "  of  government,  thus  governing 
themselves  and  remaining  supreme ;  and  the  senators  and  representa- 
tives, chosen  by  each  state,  are  that  states  delegation,  to  represent  her 
in  the  congress  of  states. 

In  fine,  Noah  Webster  always  asserted  the  unquestionable  truth 
that  our  system  is  a  confederacy  of  states,  —  "  states  united  "  \_les  etats 
unis],  to  use  his  own  phrase,  —  and  that  their  government  was  their 
mere  agency,  or  the  means  by  which  they  governed  themselves. 

The  Untruths  ascribed  to  him.  —  In  this  matter  of  FACT  and  TES- 
TIMONY, he  is  made  to  teach  as  truth  the  untruth,  that  our  general 
polity  is  a  nation  or  state,  with  counties  or  provinces  as  subdivisions, 
such  as  existed  under  Britain ;  that  congress  is  "  the  chief  legislative 
body  of  the  nation,  to  enact  laws  and  consider  matters  of  national 
interest;"  that  the  constitution  is  "the  supreme  law  of  the  land," 
for  the  government  to  enforce  over  states  and  people ;  and  that,  in 
short,  the  government,  i.  e.  congress,  has  "  absolute  supremacy  "  over 
allegiant  states. 

All  the  recent  declarations  and  acts  of  the  dominant  party  of  the 
country,  and  of  the  government  as  administered  by  that  party,  entirely 
conform  to  these  forged  teachings. 


VERBAL  JUGGLERY.  253 

Pro  Tanto,  the  Book  is  not  Noah  Webster's.  —  Noah  Webster's 
dictionary  means  Noah  Webster's  definitions ;  and  he  and  his  name 
are  responsible  only  for  the  products  of  his  own  mind.  "  The  chief 
value  of  a  dictionary  consists  in  its  definitions"  says  Noah  Webster's 
son-in-law,  Chauncey  A.  Goodrich,  in  the  edition  of  1847,  which  he 
"  revised  and  enlarged  ; "  and  yet,  after  many  editions  had  been  issued, 
with  the  definitions  in  question  unchanged,  the  principles  involved  in 
them  were  attacked;  and  while  a  hot  war  raged  about  them,  the 
assailants,  filled  with  passion  and  rancor,  were  allowed  to  change  such 
definitions  to  suit  their  contention  and  j  ustify  their  wrongs.  No  doubt 
the  revision  of  political  and  constitutional  terms  was  entrusted  to  some 
eminent  lawyer,  the  correctness  of  whose  work  was  taken  for  granted  : 
but  a  great  and  gross  wrong  has  been  done,  and  it  remains  to  be  seen 
what  Noah  Webster's  descendants  will  do. 

They  would  never  allow  one  who  had  contracted,  and  then  quarrelled 
with  them,  to  define  anew  the  words  of  the  contract,  so  as  to  alter  its  whole 
meaning,  or  one  who  had  robbed  them,  or  murdered  one  of  their  family, 
to  change,  after  the  fact,  the  crime's  description,  or  the  meanings  of  its 
words  !  Ah  !  if  the  descendants  of  that  great  man  inherit  any  of  his 
sturdy  nature,  clear  mind,  pure  principles,  bright  honor,  and  proud 
dignity,  they  will,  as  he  undoubtedly  would,  repudiate  the  wrongful 
changes,  and  publish,  as  soon  as  may  be,  a  genuine  edition. 

If  the  enormity  of  this  wrong  were  understood,  the  outcry  would  be 
universal.  Six  thousand  years  of  history  can  show  no  parallel.  The 
American  people,  at  a  great  (and  to  the  family  of  Webster  a  most 
precious)  price,  bought  the  results  of  that  great  man's  labors,  —  his 
wares,  so  to  speak,  —  and  they  paid  him  with  princely  patronage,  the 
highest  of  mortal  honor,  and  the  most  profound  veneration  for  his 
memory. 

But  he  conveyed,  and  could  convey,  as  to  these  subjects,  nothing  but 
ascertainments.  The  language  and  its  meanings  already  belonged  to 
the  people ;  and  they  wanted  the  latter  fixed  precisely,  as  to  contempo- 
rary signification,  so  that  their  institutional,  political,  and  legal  words 
could  be  ever  used,  like  coins  and  weights  and  metes,  as  tests  or  measures 
of  right  and  power  and  duty,  by  themselves  and  their  ruling  agents. 
This  was  Webster's  noble  task,  and  he  performed  it  royally. 

Contemporanea  Expositio.  —  The  reader  must  keep  it  in  mind 
that  the  inquiry  is  ever  as  to  the  intent  of  the  makers  or  constitutors 
of  the  federal  system,  just  as  it  would  be  if  the  subject  were  any  other 
constitution  or  instrument  expressing  will.  What  did  the  words  used, 
then,  mean  ]  This  is  common  sense,  and  these  meanings  are  the  peo- 
ple's rights.  "  Contemporanea  expositio  est  optima  et  fortissima  in  lege  " 
is  a  universally  accepted  maxim.  Daniel  Webster  said,  in  1833:  "The 


254  FALLACIOUS  EXPOSITION. 

constitution  ought  to  be  considered,  when  it  uses  well-known  language, 
as  using  it  in  its  well-known  sense ; "  and  Chief  Justice  Marshall  said, 
in  the  Burr  case  :  "So  far  as  the  meaning  of  any  terms  is  completely 
ascertained,  those  by  whom  they  are  employed  must  be  considered  as 
employing  them  in  their  ascertained  meaning,  unless  the  contrary  is 
proved  by  the  context."  Similar  passages  could  be  given  from  Vattel, 
Pothier,  Lieber,  and,  in  short,  all  other  publicists. 

Now  these  precious  materials,  of  which  our  political  defences,  both 
general  and  local,  are  built,  these  walls  of  adamant,  as  we  fondly 
supposed  them  to  be,  surrounding  the  treasuries  and  citadels  of  our 
"blessings  of  liberty"  [federal  preamble],  are  perverted,  interpreted 
away,  changed,  or  nullified,  by  the  trusted  exponent  and  defender,  or 
his  representatives. 

The  people  —  the  majestic  governing  people  of  this  country  — 
placed  the  highest  value  on  Webster's  Dictionary,  as  a  treasury  of 
truth  and  principles,  which  were  to  be  kept  sacred  for  use,  to  measure 
and  weigh  their  moral,  legal,  political,  and  treaty  obligations ;  and  they 
reposed  in  Webster  and  his  fidelity  a  knightly,  nay,  a  royal  faith. 
The  conduct  reviewed  —  like  that  of  those  chosen  servants  of  the 
people,  who  are  oath-bound  to  support  and  defend,  but  who  violate, 
the  constitution  —  may  be  compared  to  that  of  the  trusted  knight, 
who,  while  his  king  was  in  deadly  conflict,  got  behind  his  shield,  and, 
with  his  own  weapons,  wounded  him  to  death ! 


CHAPTER  XIII. 

CONSERVATIVE  ERRORS. 

IN  concluding  this  part  of  my  work,  I  will  try  to  expose  the  errors 
of  several  public  teachers,  whose  devotion  to  liberty  and  the  sacred 
defences  thereof  cannot  be  called  in  question.  Many  of  these  eminent 
so-called  conservatives  and  strict-constructionists  do,  with  great  show 
of  research,  thought,  and  logic,  combat  the  errors  of  "  the  Massachu- 
setts school,"  while  they  themselves  promulgate  fallacies  nearly  as 
reprehensible. 

If  this  class  reform  their  views  of  our  general  polity,  they  must 
study  it  in  the  light  of  actual  contemporaneous  history,  and  the 
herein  contained  explanations  of  the  fathers,  repudiating  the  false 
gloss  thrown  on  it,  first  by  enemies  to  defeat  it,  and  afterwards  by  the 
equally  unfounded,  because  identical,"  dogmas  of  Dane,  Story,  and 
Webster,  and  their  followers. 

"A  REPUBLICAN  FORM  OF  GOVERNMENT." 

Probably  the  most  widespread,  important,  and  cardinal  error  is  in 
reference  to  the  meaning  of  this  seemingly  plain  phrase.  I  have  seen 
it  used  in  argument  hundreds  of  times  in  this  generation,  but  never 
in  its  true  sense,  i.  e.  the  meaning  it  had  in  the  minds  of  the  fathers, 
which  I  shall  now  try  to  show. 

This  phrase  can  but  mean  a  republic.  "  The  people  "  were  organ- 
ized, did  exist,  and  could  only  act  as  bodies,  called  "  Massachusetts," 
"  Pennsylvania,"  "  Virginia,"  "  Georgia,"  etc.  Each  was  a  republic,  a 
commonwealth,  a  state,  i.  e.  a  "  moral  person,"  possessed  of  a  mind 
and  will.  This  will  in  each — that  is,  the  collective  will  of  the  people 
—  was  to  be  exercised  in  self-government ;  and,  in  providing  that  "  the 
united  states  shall  guaranty  to  every  state  in  this  union  a  republican 
form  of  government,"  the  constitution  seems  to  mean  that  the  will 
and  power  of  all  the  communities  of  people  are  to  be  exerted,  when 
necessary,  to  protect  each  community  of  people  in  self-government, 
i.  e.  in  the  free  exercise  of  her  own  will  in  all  governmental  matters. 


256  FALLACIOUS  EXPOSITION. 

The  wills  of  the  thirteen  states  were  exerted  through  deputies  in 
the  convention  of  1787,  in  devising  the  "federal  constitution;"  and 
the  same  wills  were  separately  and  successively  exerted  in  ratifying, 
i.  e.  in  ordaining  and  establishing  that  constitution,  and  endowing  it 
with  its  only  possible  legitimate  life  and  power. 

The  Sovereign  Wills  survived  Federation.  —  The  wills  exercised 
on  that  grand  occasion  dwelt  in  pre-existent  states.  To  associate  the 
bodies-politic  as  "  united  states,"  and  subject  their  people  to  "  the 
government  of  the  united  states,"  these  wills  must  have  been  sove- 
reign wills ;  must  have  continued  sovereign  until  the  government  was 
completed  and  actually  set  at  work;  and  must,  as  sovereign  wills, 
have  survived  the  act  of  making  the  union  of  states.  And  hence, 
unless  abdication  or  suicide  can  be  shown,  these  sovereign  wills  ex- 
isted until,  in  war,  the  states  were  brought  under  the  yoke,  i.  e.  sub- 
jugated. 

"  Form "  and  Soul  both  are  meant.  —  But  all  the  attempts  at 
exposition  I  have  seen,  appear  to  take  it  for  granted  that  the  provi- 
sion referred  to,  means  merely  the  form  of  a  republic,  even  though  life 
and  soul  be  wanting ;  or  though  the  said  form  cower  helpless  under 
despotism,  as  several  of  the  American  states  have  heretofore  done  ! 

I  will  give  here  two  examples  of  the  error,  to  comment  on.  In 
speaking  of  the  Louisiana  case,  the  New  York  Sun  said  the  following : 
"  The  oft-cited  clause  of  the  constitution,  that  the  United  States  shall 
guaranty  to  every  state  in  this  union  a  republican  form  of  govern- 
ment, does  not  apply  to  a  case  like  that  existing  in  Louisiana.  The 
form  of  the  government  of  that  state  is  all  right."  [N.  Y.  Sun, 
1874.] 

A  leading  southern  paper  —  highly  conservative  —  held  forth  on 
the  same  topic,  as  follows :  "  That  there  is  no  defect  in  the  form  of 
the  constitution  of  Louisiana,  is  perfectly  clear.  Its  form  is  contained 
in  her  constitution,  which  is  the  especial  production  of  congress  by  its 
reconstruction  laws.  .  .  .  How  can  congress  then  affirm  that  the 
form  of  this  constitution  of  Louisiana  is  not  republican  1 " 

The  error  here  is  amazing,  considering  that  it  is  that  of  a  Louisi- 
ana journal.     In  saying  "  its  form  is  the  especial  production  of  con- 
gress by  its  reconstruction  laws,"  it  virtually  but  unwittingly  said  — 
"  Louisiana  has  no  sign  of  a  republican  form  of  government," 

These  views  which  seem  universal,  even  among  conservatives,  result, 
as  I  humbly  think,  from  confused  thought,  or  a  want  of  thought.  The 
word  "form  "  in  the  clause,  must  mean  kind  or  sort. 

When,  in  the  process  of  making  the  principles  of  liberty  and  human 
rights  institutional,  the  people  put  the  guaranty  clause  in  the  federal 
constitution  [Art.  IV.,  §  4],  they  acted  in  view  of  the  general  forms 


CONSERVATIVE  ERRORS.  257 

(or  kinds,  or  sorts,  or  species)  of  government,  the  world  then  pre- 
sented, and  publicists  explained,  viz.  :  the  monarchical,  the  aristo- 
cratic, and  the  republican;  and  they  said,  "  We  want  no  monarchy  or 
aristocracy,  but  we  aim  to  establish  or  perpetuate  a  republic."  Hence 
the  idea  in  all  the  institutions  then  being  established  was,  that  the 
people  were  to  govern  themselves  —  all  constitutions  being  their  fun- 
damental laws,  establishing  their  forms  of  government,  and  all  rulers 
being  their  substitutes,  agents  and  -servants.  All  sovereignty  was 
held  to  be  ever  in  the  people,  and  never  in  the  rulers ;  and  the  above 
article  means  as  follows  :  The  associated  states  shall  guaranty  to  every 
state  in  the  association,  that  she  shall  have  and  enjoy  the  being  and  rights 
of  a  republic,  —  that  is  to  say  :  New  York,  Massachusetts,  Ohio,  Vir- 
ginia, Illinois,  Georgia,  Oregon,  Texas,  and  others,  collectively,  are 
bound  in  sacred  faith  and  international  honor,  by  their  treaty,  com- 
pact, or  constitution  (whichever  it  may  be  called),  to  secure  Louisiana 
in  being  and  remaining  a  republic.  They  must  use  their  influence, 
their  political  authority,  an£  finally,  if  needs  be,  their  material 
strength,  to  preserve  in  her  the  unqualified  right  of  self-government. 
It  does  not  mean  that  she  shall  have  "a  republican  form"  without 
substance  —  the  appearance  or  pretence  of  freedom  without  the  reality. 
It  does  not  mean  that  she  shall  have  a  constitution,  a  legislature,  an 
executive,  a  judiciary,  and  popular  voting  (some  European  monarchies 
have  all  of  these),  but  that  she  shall  be  a  republic,  and  govern  her- 
self—  separately  in  her  own  affairs,  and  jointly  with  her  sisters  in 
federal.  It  does  not  mean  that  she  shall  have  all  her  rights  reserved 
to  her  IN  the  federal  constitution  (as  the  Storys,  Curtises,  and  even 
many  leading  democrats,  say),  but  that  she  shall  have  and  enjoy  all 
original  rights,  and  all  original  power.  Rights  and  powers  reserved 
must,  of  course,  be  out  of  the  instrument  which  contains  the  rights 
and  powers  delegated,  as  a  moment's  reflection  on  Amendments  IX. 
and  X.  will  show. 

All  this  is  consistent  with  the  legitimate  authority  in  the  federal 
constitution,  which  is  plainly  written,  vicarious,  and  confined.  It  is 
authority  given  to  men  to  act,  not  for  themselves,  but  for  others,  who 
of  course  are  above  them.  These  superiors  are  the  people,  however 
organized  and  acting.  The  claim  of  absolute  supremacy  over  states, 
instead  of  delegative  authority  from  and  under  them,  is  the  assertion 
of  might,  trying  to  become  right  by  force  and  fraud. 

Self-Preservation  the  Duty  of  a  State.  —  The  states  in  this  union 
associated  for  self-preservation,  and  they  contemplated  no  change  in 
themselves,  or  diminution  of  authority.  To  "  provide  for  "  "  defence  " 
and  "  welfare,"  they,  the  said  "moral  persons,"  exercised  the  investi- 
gative faculties,  reasoning  powers,  judgment,  and  will,  that  a  natural 

17 


258  FALLACIOUS  EXPOSITION. 

person  would  do,  for  the  same  purposes.  It  must  be  kept  in  mind 
that  the  Almighty,  in  making  men  moral  agents,  i.  e.  giving  them 
the  right  of  self-government,  and  ruling  them  into  society,  requires 
that  the  above-mentioned  powers  shall  be  exercised  now  and  ever, 
for  that  self-preservation,  which  is  the  first  law  of  nature,  equally  to 
states,  persons,  tand  brutes.  States  as  well  as  men  are  the  products 
of  God's  wisdom.  Now,  reader,  think  of  it,  and  tell  me  if  you  do  not 
ascertain  facts,  reason  on  them,  judge,  and  determine  your  w ill,  as  to 
your  "  defence  "  and  "  welfare  1 "  Must  not  every  moral  being  do  so  ? 
If  the  last  time  you  did  so,  you  had  bound  yourself  to  do  so  no  more, 
would  you  not  be  a  slave  1  If  a  state  has  so  bound  herself,  is  she  still 
free  ]  The  great  issue  now  before  God  and  the  world,  is  freedom  or 
slavery  of  states !  —  states  made  of  men,  and  their  belongings  and 
rights ! 

Ah !  such  mental  powers  in  a  God-endowed  commonwealth  —  the 
"moral  person"  Vattel  speaks  of — are  coupled  with  the  duty  of  con- 
stant exercise.  A  state  is  charged  withithe  "  defence  "  and  "  welfare  " 
of  her  people.  Her  making  this  union,  is  a  confession  of  her  duty  to 
make  another  if  this,  her  second  effort,  fail,  as  did  her  first.  And 
nothing  but  weakness  can  excuse  her  for  not  destroying  the  despotism 
that  prevents  the  free  exercise  of  her  will  and  duty  in  this  matter. 
Weakness  alone  makes  submission  a  duty.  This  and  the  women  and 
children,  have  often  been  the  sole  safety  of  the  oppressors,  in  some  of 
the  states ! 

Voting  was  a  mere  Simulacrum  of  Liberty,  in  some  of  our  states. 
In  them  only  the  form  of  institutional  freedom  was  left.  "  Soul  was 
wanting  there."  The  will  of  the  corporate  despot  at  Washington, 
instead  of  the  will  of  the  people,  was  law.  But  was  it  not  a  repre- 
sentative government?  Did  not  the  people  elect  all?  Is  not  that 
self-government  1  Vain  delusion !  In  England  the  people  elect.  Louis 
Napoleon  had  universal  suffrage  in  France.  Our  people  were  similarly 
privileged.  We  had  the  "  form,"  but  no  substance,  no  life  of  the 
republic  !  "  The  government  "  claimed  and  enforced  "  absolute  su- 
premacy "  over  states  and  people. 

The  Guaranty  is  Really  One  of  Sovereignty.  —  It  is  evident, 
then,  that  the  state,  as  a  political  body,  has  the  right  to  the  guaranty ; 
and  that  her  soul,  her  will,  and  her  right  to  govern,  must  be  included. 
The  soul  is  essential  to  such  "  moral  person "  [Vattel],  and  reason, 
judgment,  and  will  are  essential  to  the  soul.  Hence,  to  guaranty 
republican  government  to  a  state,  is  to  guaranty  the  continued  exist- 
ence of  the  community  of  people  referred  to  ;  the  continued  existence 
of  the  soul  of  that  commonwealth ;  the  continued  existence  of  the  will 
thereof;  the  continued  existence  of  the  right  of  that  will  to  govern  in 


CONSERVATIVE  ERRORS.  259 

all  cases ;   and  the  continued  existence  of  its  entire  control  of  the 
instruments  called  votes,  by  and  through  which  the  said  will  is  ex- 


These  votes  spring  solely  from  the  will  of  the  commonwealth. 
Through  them,  under  state  laws,  and  at  state  polls,  all  officers,  state 
and  federal,  get  their  sole  validity  and  authority  to  act.  All  the 
power  of  the  federal  government  of  any  kind,  or  on  any  subject,  must 
come  through  these  votes.  Says  Montesquieu  :  "  In  a  democracy, 
there  can  be  no  exercise  of  sovereignty  but  by  the  suffrages  of  the 
people,  which  are  their  will.  The  sovereign's  will  is  the  sovereign 
himself.  The  laws  establishing  suffrage  are  therefore  fundamental  to 
this  government."  [Esprit  des  Lois,  p.  12.] 

Some  may  fancy  they  find  "  exploded  theories "  in  what  I  here 
write;  and  may  think  I  am  "behind  the  times,"  and  "unpractical." 
But  I  am  only  restating  the  statements  and  faith  of  the  fathers ;  and 
giving  the  precise  acts  of  the  people,  in  building  up  their  permanent 
institutions ;  and  I  am  very  careful  to  adduce  facts,  and  to  avoid  the 
great  offence  of  denying,  burying  or  crushing  "  God's  truth ; "  for  it 
will  live  through  time,  "  rise  again,"  and  finally  "  sear  the  eyeballs  " 
of  those  who,  because  it  is  stricken  down,  and  they  think  it  trouble- 
some and  profitless  to  raise  and  defend  it,  say  :  "  Let  us  accept  the 
situation,"  and  "go  ahead  from  attained  results!" 

THE  FOURTEENTH  PARTY  TO  THE  COMPACT 

was,  according  to  Robert  Y.  Hayne  and  Judge  J.  S.  Black,  the  gov- 
ernment, which  could  not  have  had  any  existence,  till  long  after 
the  eleven  states  had  ratified,  established,  and  finished  said  com- 
pact. 

Hayne,  in  his  debate  with  Webster,  said  :  "  Here  then  is  a  case  of 
a  compact  between  sovereigns ;  and  the  question  arises  —  what  is  the 
remedy  for  a  clear  violation  of  its  express  terms,  by  one  of  the  par- 
ties ?"  —  thus  treating  the  government,  both  as  a  party,  and  a  sove- 
reign. [IV.  Ell.  Deb.  509,  516.] 

Judge  Black  is  an  abler  man,  and  a  clearer  thinker.  In  the  Milligan 
case,  he  spoke  of  the  "  vesting  of  the  judicial  power,  which  the  united 
states  could  legally  exercise;"  and  said  —  "that  was  the  compact 
made  with  the  general  government  at  the  time  it  was  created." 

Other  eminent  men  make  the  same  mistake,  so  that  the  confusion 
of  ideas  on  this  subject  is  general.  It  is  only  necessary  to  say  that 
the  compact  existed  and  was  complete,  through  those  ratifications, 
declared  in  itself  to  be  sufficient  for  the  establishment  of  it,  many 
months  before  the  general  government  existed.  After  the  collective 


260  FALLACIOUS  EXPOSITION. 

states,  in  the  congress  of  themselves,  had  recognized  the  finished  com- 
pact, and  advised  the  states  to  act  under  it,  by  electing  their  subjects 
as  its  functionaries ;  after  the  several  states  had  elected  their  quotas, 
according  to  the  express  terms ;  and  after  these  electees  had  convened 
and  organized  under  the  said  pact ;  then  and  not  till  then  did  or 
could  the  general  government  exist.  It  is  then  absurd  to  call  the 
government  a  party. 

The  real  fourteenth  party  —  if  any  —  is,  as  has  been  shown  hereto- 
fore, the  association  called  "  the  united  states,"  to  which  all  the  pow- 
ers of  the  constitution  were  delegated,  as  Amendment  X.  proves.  [See 
supra,  193.] 

Article  I.  of  the  original  form  of  the  constitution,  as  unanimously 
approved  by  the  convention  of  1787,  corroborates  this  view  fully: 
"  The  style  of  the  government  shall  be  '  the  united  states  of  America.' " 
The  united  republics  themselves  —  and  not  their  agency  —  were  to 
be  "the  government."  The  people,  as  organized,  must  govern  them- 
selves. Otherwise  they  are  not  republican !  [See  V.  Ell.  Deb. 
377.] 

NULLIFICATION. 

The  first  remarkable  appearance  of  this  error  —  for  such  I  assume 
it  to  be  —  is  in  the  Kentucky  resolutions  of  1799,  said  to  have  been 
written,  or,  at  least  inspired,  by  Mr.  Jefferson.  [See  IV.  Ell.  Deb. 
545.]  The  Virginia  resolutions  of  179S  are  also  charged  —  but  de- 
nied —  to  contain  the  doctrine. 

The  next  most  conspicuous  assertion  of  the  claim,  was  that  of 
South  Carolina,  and  her  leading  statesmen,  in  1830-1833. 

As  has  been  shown,  the  state  has  a  sovereign  mind  and  will,  of 
which  the  constitution  and  the  resultant  government  are  alike  the 
oflspring  ;  while,  in  establishing  such  constitution,  and  working  the 
government  through  agents,  the  said  state  is  simply  exercising  its  right 
of  government,  i.  e.  sovereignty,  in  a  purely  functional  way.  To  say 
it  is  the  sovereign  law-making  power,  is  equal  to  saying,  it  is  the  sove- 
reign law-repealing  power.  The  states  elect  all  government,  and  dele- 
gate all  governmental  authority. 

But,  a  state  or  its  convention  has  no  right  to  withdraw  some,  and 
leave  the  rest  of  the  powers ;  or  obstruct  the  execution  of  a  part ;  or 
annul  a  law,  while  adhering  to  the  union ;  for  the  constitution,  being 
a  compact,  is  not  to  be  partly  suspended,  and  partly  executed,  by  one 
of  the  parties.  If,  however,  a  state  attempt  it,  only  a  casus  belli  is 
•made,  for  coercing  the  will  of  a  state  is  inconsistent  with  the  volun- 
tariness  of  the  states'  union,  and  their  action  in  it ;  and,  of  course, 
justifies  the  return  of  blows.  The  fathers  characterized  such  coercion 


CONSERVATIVE  ERRORS.  261 

correctly,  as  war.  Hence,  the  position  of  the  Jackson  administration 
is  as  bad  as  that  of  the  milliners ;  and  its  proclamation  was  both 
petty  and  fogging  sophistry  —  a  state  paper  alike  unworthy  of  the 
subject  and  the  author.  The  proclamation  of  force  was  not  actually 
against  an  unlawful  combination,  so  much  as  against  the  sovereign  will 
of  an  equal  commonwealth  ;  and  it  was  treasonable  in  its  nature ! 

A  Cardinal  Error  and  a  Plain  Distinction.  —  South  Carolina 
made  a  great  mistake  in  attempting  to  nullify  the  federal  tariff  laws ; 
and  it  raised  a  fatal  prejudice  against  secession,  or  the  ultimate  peace- 
ful right  of  self-preservation,  which  of  course  includes  discretion  as  to 
occasion,  time,  and  manner.  South  Carolina  should  have  protested, 
and,  if  unheeded,  withdrawn.  Her  false  position  gave  Webster  his 
great  vantage-ground,  of  which  he  availed  himself  most  adroitly  — 
yoking  "  nullification  "  and  "  secession  "  together,  and  driving  both  to 
ruin. 

Said  he :  "  In  the  constitution  it  is  the  people  who  speak,  and  not 
the  states ;  ...  it  does  not  exact  from  states  any  plighted  public 
faith  to  maintain  it ;  ...  it  makes  its  own  preservation  depend  on 
individual  duty  and  obligation."  He  then  proceeds  to  say  that  state 
legislators,  judges,  and  executive  officers,  like  federal  functionaries,  are 
bound  by  oath  to  support  the  constitution  [Art.  VI.,  §  3]  and  hence 
are  compelled  to  elect  senators,  and  provide  for  the  election  of  repre- 
sentatives and  president.  The  functions  of  states  in  the  union,  he 
argues,  are  not  voluntary ;  they  have  no  discretion ;  "  the  people " 
have  bound  them  inseparably  to  the  constitution,  and  under  the  con- 
trolling power  of  the  federal  government.  Their  sovereign  will,  and 
right  of  self-preservation,  are  alienated  and  gone  forever.  Hence 
(having  made  his  premises,  his  conclusion  is  easy),  both  "  nullifica- 
tion "  and  "  secession "  are  unconstitutional  and  inadmissible.  But 
Mr.  Webster  finds  it  convenient  to  ignore  the  most  important  fact : 
that  members  of  a  state  convention  are  not  mentioned,  and  are  not 
under  the  obligation  of  taking  such  oath  (expressio  unius  est  exclusio 
alterius}.  Why  are  not  conventionists  required  to  take  the  oath? 
Because,  immediately  representing  the  sovereignty  —  they  MADE  said 
constitution  (including  this  clause)  and  are  of  necessity  above  it.  The 
will  that  creates,  remains  above  its  creation.  The  will  that  delegates 
powers,  owns  them  absolutely ;  and  whosoever  else  holds  them,  does 
it  as  agent  or  trustee.  States  did  not  intend  to  subordinate  themselves. 
They  did  not  place  themselves  under  the  jurisdiction  of  the  federal 
government,  as  every  line  of  the  record  shows !  Not  only  so,  but 
they  provided  against  even  judicial  federal  control ;  and,  moreover, 
they  spurned  the  idea  of  federal  coercion  of  states,  from  their  "  con- 
vention of  states,"  while,  at  the  same  time,  they  gave  to  the  govern- 


262  FALLACIOUS   EXPOSITION. 

mental  agency,  or  commission  for  federal  affairs,  just  such  relations  to, 
and  control  over,  their  citizens,  as  their  state  governments  had  —  and 
nobody  claims  that  these  have  sovereignty  over  the  states ! 

When,  then,  the  organized  people  —  the  state  —  call  a  convention, 
it  is  the  sovereignty  that  acts  :  it  is  uncontrollable  —  above  all  con- 
stitutions, and  in  no  degree  bound  by  them,  for  it  is  the  power  that 
alike  constitutes  and  dissolves,  makes  and  unmakes  them.  Massachu- 
setts conclusively  proves  this  in  her  constitution,  as  heretofore  quoted  : 
"  The  people  of  this  Commonwealth  .  .  .  have  an  incontestable,  un- 
alienable  and  INDEFEASIBLE  RIGHT  to  institute  government,  and  to  ... 
TOTALLY  CHANGE  the  same  when  their  safety  and  happiness  require  it." 
This  constitution,  which  is  full  of  unqualified  state  sovereignty,  is 
said  to  have  been  written  by  John  Adams,  the  ancestor  of  the  present 
conspicuous  persons  of  that  name  in  Massachusetts. 

The  Plain  Distinction.  —  Now  we  can  see,  quite  plainly,  the  dis- 
tinction between  nullification  and  secession. 

Nullification  remains  in  the  union,  enjoying  its  benefits,  but  only 
obeying  such  part  of  its  laws  as  it  pleases ;  and  sworn  functionaries 
presumably  violate  their  oaths. 

Secession  withdraws  from  the  union  of  states,  revoking  all  powers 
"  delegated "  thereto ;  and  state  officials  are  relieved  of  all  federal 
obligations  by  the  supreme  power  that  imposed  them. 

I  think  now  that  it  is  conclusively  proved,  by  the  self-characteriza- 
tion, and  the  action  of  the  states  in  the  union,  that  each  original  one, 
being  thoroughly  organized  and  sovereign,  did,  by  virtue  of  its  sove- 
reignty, through  its  convention,  federate,  "  delegating "  a  part  of  its 
governing  power  to  the  united  states,  who,  by  their  agency,  constituted 
in  the  act  of  federation,  govern  for  their  common  defence  and  general 
•welfare.  And  each  of  these  great  commonwealths  passed  into  the 
union,  exactly  as  she  pre-existed,  in  her  full  integrity,  with  all  her 
faculties,  possessed  of  plenary  authority,  and  acting  functionally,  in 
all  matters  of  government,  with  uncontrolled  will.  And  ever  since 
its  sovereignty  came  by  revolution,  as  well  before  as  since  the  present 
federal  constitution  was  formed,  it  has,  at  discretion,  "  delegated "  a 
supplement  of  governing  authority  to  an  agency  for  home  affairs  — 
this  also  being  done  by  its  convention. 

Unquestionably,  then,  the  nullifying  or  suspending  of  the  laws  or 
the  federation  by  a  party,  while  staying  in,  and  enjoying  the  benefit  ot 
the  association,  is  inconsistent  with  the  "  compact  and  plighted  faith," 
upon  which  Mr.  Webster,  as  well  as  every  other  candid  publicist, 
bases  the  "  ARTICLES  OF  UNION  "  "  BETWEEN  THE  STATES  "  (as  the  fede- 
ral convention  unanimously  characterized  them),  and  the  laws  passed 
in  pursuance  thereof. 


CONSERVATIVE  ERRORS.  263 


"THE  LOST  PRINCIPLE." 

If  the  states  ratified  the  constitution,  each  for  herself,  they  must  be 
"  the  parties  to  the  compact"  [Hamilton,  85  Fed.],  and  the  only  way  to 
show  that  sections,  or  groups  of  states,  were  also  parties,  is  to  show 
that  they  exercised  their  wills,  as  such,  in  becoming  so.  Among  the 
misleading  and  confusing  expositions  to  be  noticed,  are  two,  the  first 
by  "Barbarossa"  (Robert  E.  Scott,  of  Virginia),  in  1860,  under  the 
above  title ;  and  the  other  by  Webster  and  Curtis,  to  rid  the  former 
of  these  two  of  an  inconsistency  in  his  speech  of  1833. 

"  Barbarossa's  "  theory  is,  that  in  the  convention  of  1787,  a  warm 
controversy  arose  between  the  larger  and  the  smaller,  and  between 
the  northern  and  southern  states,  which  was  settled  by  a  compact, 
establishing  sectional  equilibrium.  The  theory  will  be  found  in  the 
appendix  hereof,  in  the  author's  own  words.  [See  Appendix  F.] 
Among  the  motives  and  understandings,  this  may  have  had  place ;  but 
it  was  not  expressed  and  consecrated  among  those  institutional  bal- 
ances and  checks  that  the  sworn  statesman  or  the  expositor  must  take 
cognizance  of,  and  to  which  he  must  confine  himself.  "  Barbarossa  " 
marvels  at  Madison  not  mentioning  this  compact  of  equilibrium,  in  the 
constitutional  convention  of  Virginia,  in  1829,  of  which  he  (Madison) 
a  member.  I  think  the  duty  of  stating,  then  and  there,  so  im- 

>rtant  a  part  of  our  system — if  part  it  had  been  considered  —  would 
not  have  been  shirked.  But,  I  opine,  it  was  no  part.  The  constitution 
was  written,  complete  and  palpable,  and  contained  —  and  it  contains 
now  —  no  hint  of  the  momentous  compact,  which  "  Barbarossa " 
contends  belongs  to  it,  and  "  makes  the  federal  system  even  more 
complex  than  it  has  been  generally  supposed  to  be." 

In  conclusion  of  this  subject,  I  submit  that  the  idea  of  compact  is 
inadmissible,  where  it  is  not  evidenced  by  the  words  and  figures  of  the 
instrument,  is  not  promulgated  as  a  part  of  the  supreme  law,  is  never 
mentioned  in  history,  or  contemporary  annals,  but  lies  occult  and  un- 
known for  forty  years  in  a  secret  journal,  which  might  never  have  seen 
the  light.  I  should  incline  to  a  more  positive  opinion,  but  for  the  fact 
that  Professor  Blftisoe,  who  was  always  thorough  in  research,  and  alike 
comprehensive  and  profound  in  reflection,  thought  the  matter  involved 
a  practical  and  binding  compact,  of  which  he  promised  to  treat,  in  a 
history  of  the  late  war,  which  he  intended  to  write.  [See  Southern 
Review,  Jan.  1876.] 

Webster  and  Curtis  have  the  Same  Idea.  —  As  Daniel  Webster 
had  inveighed  against  Calhoun's  use  of  the  phrase  "constitutional 

>mpact,"  and  had  been  himself  a  habitual  user  of  the  phrase,  he  had 


264  FALLACIOUS  EXPOSITION. 

to  explain,  as  did  Mr.  Curtis,  the  latter  as  follows  :  "  He  was  speaking 
of  a  particular  clause  in  the  constitution,  ...  as  founded  on  a  com- 
pact between  different  classes  of  states."  Of  course,  the  mysterious 
"  compact  "  is  far  down,  and  to  judge  of  it,  we  must  do  as  we  do  with 
mummies  :  in  the  first  place,  bring  them  from  under  the  pyramid, 
and,  secondly,  unfold  them  a  good  deal.  But  I  must  pass  on,  refer- 
ring to  the  above  remarks  on  "  Barbarossa's  "  theory,  and  to  page  211, 
supra.  Contemporaneous  exposition  is  valuable,  but  it  must  be  based 
on  the  actual  provisions  of  the  constitution. 

"THE  CONSENT  OF  THE   GOVERNED." 

In  the  Declaration  of  Independence,  Jefferson  wrote  that  to  secure 
the  rights  of  "  life,  liberty,  and  the  pursuit  of  happiness,"  govern- 
ments are  instituted,  "deriving  their  just  powers  from  the  consent  of 
the  governed."  In  a  republic,  of  course,  will  —  the  collective  will  — 
is  the  proper  word,  consent  being  included  ;  for  Englishmen,  Germans, 
and  Russians  give  consent  to  government,  just  as  much  as  Americans 
do.  A  clement  and  gracious  king,  in  doing  his  own  will,  always  seeks 
the  people's  preference  or  consent ;  and,  in  England,  the  wish  of  the 
people  is  a  very  influential  guide  to  government.  But  this  does  not 
answer.  Will  is  wanted. 

Our  public  men  and  press  seem  to  think  that,  because  the  southern 
states  submit,  they  consent ;  so  that  the  Declaration  is  satisfied,  and 
the  soul  of  Jefferson  content. 

If  they  be  republics,  their  will —  the  will  of  the  people  —  the  will 
of  the  commonwealths  must  govern. 

"THE  WILL  OF  THE   MAJORITY  RULES." 

Is  not  this  phrase  of  Mr.  Jefferson  both  fallacious  and  pernicious? 
I  can  find  no  evidence  that  either  he,  or  any  subsequent  politician,  has 
deliberated  on  the  subject ;  and  it  seems  to  be  one  of  the  numerous 
honest  but  loose  and  misleading  phrases,  that  so  infest  our  politics 
and  confuse  our  political  ideas. 

Will  is  a  unit  in  the  state,  and  it  governs,  determ%iing  itself  by  its 
instruments  —  votes.  The  majority  of  voters  is  never  brought  to- 
gether and  organized,  so  as  to  make  a  body  for  a  mind  and  will  to 
dwell  and  act  in,  for  the  purpose  and  duty  of  ruling.  This  simple 
consideration  shows  the  absurdity  of  the  phrase. 

Instead  of  electees  being  servants  of  the  electing  party,  they  are 
exclusively  the  servants  and  agents  of  the  commonwealth,  to  carry 
out  its  will.  An  official  swears  to  support  the  constitution,  i.  e.  the 


CONSERVATIVE  ERRORS.  265 

will  of  the  commonwealth,  instead  of  the  party  platform  —  "  the  will 
of  the  majority." 

"To  the  victors  belong  the  spoils"  is  alike  the  plain  English  and 
the  practical  result  of  the  dogma.  The  party  is  to  govern,  with  their 
platform  as  their  rule  of  action.  It  is  this  which  unifies  our  tripartite 
government,  and  destroys  our  system  of  absolutely  independent  checks 
and  balances.  If  a  bad  and  weak  president  or  governor  is  put  in  with 
corrupt  men,  he  becomes  the  head  of  a  conspiracy  against  liberty. 
The  three  distinct  institutions  become,  and  act  as,  a  unit,  and  cor- 
ruption begins.  The  money  and  power  they  handle  not  only  depraves 
them  more,  but  gives  them  the  means  of  future  success. 

Under  this  doctrine,  the  simple,  old-time  President  seems  to  have 
become  like  a  conqueror,  dividing  among  his  generals  a  subjugated  em- 
pire ;  or,  to  use  a  figure  that  will  suit  some  people  better,  like  a  suc- 
cessful hunter,  cutting  up  and  throwing  to  his  tired  and  hungry 
hounds  the  victim  of  the  chase. 

"THE  CHARTER   OF  OUR  LIBERTIES." 

King  John,  in  "  the  great  charter,"  designated  the  rights  his  sub- 
jects should  enjoy ;  and  he  and  his  successors  pledged  kingly  faith  not 
to  take  them  back. 

King  People,  in  constitutions,  constitute  governing  agencies,  and 
designate  the  powers  they  shall  use  for  said  king.  If  charters  at  all, 
they  are  so  only  to  the  governments  chartered,  or,  to  use  James  Wilson's 
word,  incorporated.  In  his  inaugural  address,  Washington  spoke  to  con- 
gress of  "  the  great  constitutional  charter,  under  which  you  are  assem- 
bled." The  fathers  all  held  this  view,  and  ridiculed  the  idea  of  the 
federal  constitution  being  the  source,  or  defence,  of  any  private  bless- 
ings. 

The  fathers  deemed  the  bill  of  rights  unnecessary,  and  out  'of  place, 
in  the  federal  constitution  ;  but  it  was  finally  inserted  as  a  protestative 
statement  and  treaty  guaranty  of  the  chief  institutes  of  freedom,  — 
which  were  above  all  constitutions,  —  to  allay  the  suspicions  and  fears 
of  the  people.     [See  first  ten  Amendments.] 

But,  in  these  later,  if  not  better,  days,  the  constitution  has  become 
a  charter  TO  the  people.  "The  perpetual  charter  of  freedom  for  a 
self-governing  nation "  is  what  the  old  North  American  Review 
called  it.  Andrew  Johnson,  and  I  think  James  Buchanan,  used  simi- 
lar phrases. 

Last  and  greatest,  however,  Jeremiah  S.  Black  said,  in  the  Milligan 
case  :  "  I  prove  my  title  to  my  estate  "  by  a  solemn  deed ;  so  with 
"  my  right  to  a  trial  by  jury.  There  is  the  charter  by  which  we  claim 
to  hold  it,  ...  the  constitution  of  the  united  states." 


266  FALLACIOUS  EXPOSITION. 

Story,  Webster,  and  the  federal  supreme  court  are  responsible  for 
such  delusions.  But  that  is  no  defence  to  us.  If  these  prove  to  be 
errors,  we  should  discard  them.  My  right  of  trial  by  jury,  and  other 
"  blessings  of  liberty,"  have  a  previous,  higher,  and  more  sacred  sanc- 
tion than  the  federal  pact.  The  solid  and  indestructible  common- 
wealth is  their  citadel ;  and  the  federal  pact,  with  the  above  guaranty, 
and  the  still  more  important  one,  of  the  integrity  and  absolute  authority 
of  the  commonwealth,  are  the  outer  and  impregnable  wall ! 

SOCIAL  COMPACT  —  CONSTITUTION  —  BILL  OF  RIGHTS. 

It  may  be  well  here,  in  order  to  enable  our  people  to  unmix  their 
ideas  and  think  more  clearly  on  these  subjects,  to  discriminate  as  fol- 
lows :  Firstly,  the  social  compact  is  the  agreement  or  understanding 
among  the  members  to  be,  and  obey,  the  society ;  in  other  words,  it  is 
the  organic  laio  of  the  society.  [See  Part  IV.,  Chap.  II.]  Secondly,  the 
constitution  is  the  fundamental  law,  establishing,  directing,  and  con- 
trolling the  government.  It  necessarily  involves  a  compact  among  the 
parties  to  it,  —  a  laiv,  "  the  supreme  law,"  laid  on  their  subjects,  — 
and  a  constitution  of  an  agency  to  execute  the  said  law.  It  does  not 
include  the  social  compact,  but  implies  it,  or  recognizes  it  as  a  pre- 
existent  entity.  Thirdly,  bills  of  rights  are  declarations  of  society's  or 
the  people's  rights,  —  sacred  institutes  of  freedom,  never  to  be  invaded 
by  persons  or  governments.  Hence,  a  constitution  of  government  may 
exist,  without  including  or  referring  to  either  the  social  compact  or  a 
bill  of  rights,  though  one  or  the  other,  and  sometimes  both  of  these, 
are  either  expressed  or  implied  in  some  of  our  constitutions. 

In  our  republican  form,  however,  as  society  governs  itself,  establish- 
ing society  is,  ipso  facto,  establishing  government,  —  what  is  commonly 
called  the  constitution  of  government  being  really  and  necessarily  the 
constitution  of  a  governmental  agency.  It  is  of  the  nature  of  a  re- 
public to  govern  itself.  Its  institution  of  government  is  artificial,  — 
the  making  of  a  machine  or  instrumentality.  The  society  is  God's,  the 
agency  man's,  design. 

THE  GROWTH  AND  DEVELOPMENT  THEORY. 

Perhaps  this  is  the  most  insidious,  delusive,  and  pernicious  of  all 
the  theories  that  relate  to  our  institutional  freedom.  The  idea  in- 
volved is,  or  seems  to  be,  that  republican  government  can  and  does 
grow  commensurately  with  the  area,  population,  condition,  greatness, 
or  what  not,  of  the  nation,  and  that  it  is  the  duty  of  the  governing 
agents  to  recognize,  from  time  to  time,  and  effectuate  the  changes  and 
increments, 


CONSERVATIVE   ERRORS.  267 

One  would  think  that  the  vital  provisions  for  self-government  would 
suit  San  Marino,  in  all  her  stages,  even  if  she  grew  to  be  a  China ; 
and  that,  if  change  of  institutions  and  institutes  were  at  different 
times  needed,  she,  the  sovereign,  and  not  her  agents  and  subjects, 
could  alone  rightfully  make  them. 

The  establishes  of  our  federal  compact,  and  other  constitutions, 
contemplated  the  need  of  change,  and  provided  for  their  own  doing 
of  it,  in  Article  V.  If  amendments  and  alterations  can  be  made  by 
authority  not  their  own,  their  self-government  is  over,  their  freedom 
is  gone ! 

A  moment's  reflection  on  the  sense  of  the  primitive  word  "stare  " 
(to  stand)  will  aid  us.  It  is  the  soul  of  numerous  derivatives,  such 
as  stay,  stop,  steadfast,  stable,  status,  stationary,  institute,  establish, 
constitution,  etc. ;  and  it  is  obvious  that  the  vital  words,  "  ordain  and 
establish  this  cons^wtion,"  necessarily  carry  the  idea  that  its  provisions 
are  to  stand  till  changed  by  the  ordaining  power,  which  is  the  people, 
the  societies,  the  commonwealths,  the  republics,  the  states,  especially 
as  the  amending  and  repealing  are  precisely  commensurate  with  the 
ordaining  or  enacting  power. 

But  it  is  unutterably  absurd  that  the  servants  and  subjects,  acting 
under  these  standing  orders  of  the  people,  the  constitution,  are  to 
watch  for  some  growth  and  development  in  some  or  all  of  such  orders, 
determine  when  the  changes  are  to  be  utilized,  and  finally  formulate 
and  enforce  them,  thus  reintroducing  that  very  discretion  of  rulers 
which  constitutions  were  made  to  prevent,  and  which,  when  permitted, 
has  never  failed  to  overthrow  free  government.  [See  Burke's  view, 
page  7,  supra.~\ 

The  people  are  the  be-all  and  end-all  of  government  and  governing 
action.  They  know  and  feel  their  evils  and  defects,  as  well  as  growth 
and  development,  and  they  can,  whenever  they  wish,  most  wisely  suit 
their  institutional  changes  thereto.  They  see  the  questions  extant,  as 
to  railroads,  telegraphs,  presidential  elections,  Mormons,  etc.,  and  they 
will  duly  deliberate  and  act.  And  their  servants,  whose  duty  it  is, 
instead  of  making  the  changes  themselves,  to  follow  and  aid  the  people, 
can  only  destroy  confidence  in  their  morality  and  wisdom,  by  showing 
their  willingness  to  make  changes  in  the  fundamental  decrees  of  their 
masters,  the  people,  especially  as  in  so  doing  they  necessarily  commit 
perjury  and  treason ! 

SECESSION. 

In  addition  to  the  remarks  in  Part  I.,  Chapter  IV.,  I  beg  leave  to 
note  one  or  two  errors  on  this  subject.  Secession  is  a  natural  and 
instinctive  act  of  a  sentient  being,  which,  as  to  right,  comes  within 


268  FALLACIOUS  EXPOSITION. 

the  general  one  of  self-preservation.  It  would  be  no  more  absurd  for 
a  man  to  promise  not  to  escape,  or  even  flinch,  from  danger,  than  for 
the  "moral  person,"  the  commonwealth,  to  bind  herself  not  to  use  her 
mind  in  settling  questions  of  "  defence  "  and  "  welfare,"  —  not  to  judge 
between  right  and  wrong,  safety  and  danger,  freedom  and  slavery ;  not 
to  separate  from  what  she  voluntarily  joined  ;  not  to  repeal  what  she 
enacted  or  ordained  ;  not  to  withdraw  powers  she  delegated ;  and 
not  to  dismiss  the  agents  she  chose,  even  if  they  became  enemies,  and 
warred,  with  her  own  men  and  means,  to  subjugate  and  destroy 
her! 

But  now  we  have  no  party  recognizing  this  vital  truth,  and  no 
aspirant  admitting  its  correctness.  The  Southern  states  have  spurned 
it.  The  so-called  democratic  party  condemns  it  —  as  they  might  di- 
gestion, sweating,  the  action  of  the  nerves,  or  escaping  from  a  house 
afire.  And  finally  the  Rosecrans  "  crowner's  'quest"  in  1868,  ver- 
dicted,  "  dead  by  lawful  force  !  "  and  put  copper  seals  on  its  eyes  ! 

Why  Ignore  Nature  and  Righteousness  ?  —  God  commands  every 
self-formed,  self-governing,  self-protecting  society  —  every  society  or 
commonwealth,  possessing  a  mind  and  will  of  her  own,  to  fight,  if 
necessary,  to  save  her  children  from  injustice  and  wrong,  and,  a  for- 
tiori, to  secede  for  the  purpose,  and  avoid  war.  Neighborly  kindness, 
the  promotion  of  mutual  interest,  and  the  doing  of  justice  among 
states,  are  positive  moral  forces  of  cohesion  of  the  strongest  character ; 
while  the  admitted  right  of  secession,  or,  in  other  words,  of  sundering 
unfriendly  or  hurtful  relations,  always  potently  works  towards  justice 
and  peace  and  union  !  The  spirit  of  Abraham's  "  Let  there  be  no 
strife  between  us,"  and  that  of  Grant's  "  Let  us  have  peace,"  differ 
"by  the  whole  heavens."  To  us,  especially,  "wisdom's  ways  are 
ways  of  pleasantness,  and  all  her  paths  are  peace !  "  In  short,  if 
amity  be  cultivated,  mutual  interest  promoted,  and  justice  done,  the 
union  will  never  be  saved,  in  any  active  sense,  but  will  last  forever ! 
Men  and  states  naturally  cleave  to  friendship  and  justice  ! 

The  Late  Secessions  Unjustifiable.  —  But  let  us  assume  that  the 
states  had  the  right  to  secede ;  and  then  view  the  secessions  of  1861 
on  the  higher  plane  of  morality,  and  international  conduct.  If  we 
look  at  the  defences  and  remedies  within  the  union ;  the  vast  re- 
sources of  diplomacy  ;  the  influences  always  working  in  favor  of  justice 
and  peace ;  and,  above  all,  the  healing  in  the  wings  of  Time,  —  those 
acts  of  the  seceding  states  should  be  condemned,  while  the  provo- 
cations that  caused  them  should  be  reprobated  with  even  greater 
severity. 

Leaders  of  the  people  are  too  prone  to  assume  that  right,  justice, 
the  spirit  of  compacts  and  plighted  faith,  will  be  persistently  violated ; 


CONSERVATIVE  ERRORS.  269 

I 

and  that  there  is  no  chance  for  just  settlement  in  peace  and  by  rea- 
son ;  and  they  strive  to  augment  every  impulse  of  fear  or  anger  in  the 
masses,  and  ride  to  power  on  the  wave.  "  The  sober  second  thought," 
as  Fisher  Ames  terms  it,  is  seldom  or  never  reached  before  decisive 
and  perhaps  fatal  action  ! 

All  the  counsels  and  hopes  of  the  fathers  were  disregarded.  Pa- 
tience, forbearance,  deliberation,  and  waiting  for  wise  diplomacy  and 
for  the  healing  power  of  Time,  should  have  been  the  policy  of  leaders. 
But  only  two  conspicuous  men  in  the  seceding  states  timely  gave 
such  advice  —  Davis  and  Stephens;  and  the  very  people  supposed  to 
be  hot  with  passion,  deaf  to  wisdom,  and  incapable  of  hastening  slowly, 
elected  them  unanimously  as  President  and  Vice  President  of  the  con- 
federate states !  and  unanimously  readopted  the  constitution  of  our 
fathers  !  [See  Appendix  B.] 

Among  the  Lessons  this  "Part"  conveys,  we  should  especially 
note,  that  we  require  leaders,  who  are  older  and  wiser;  less  selfish, 
less  partisan,  less  impulsive,  and  more  thoughtful ;  firmer  in  princi- 
ple, and  more  conservative  in  action;  and  finally  —  always  endeavor- 
ing to  restrain,  or  guide  aright,  the  sudden  impulses  of  the  people, 
and  trying  to  bring  reflection  —  "  THE  SOBER  SECOND  THOUGHT." 

That  we  should  as  a  duty  eliminate  from  the  exegesis  of  our  written 
polity  the  errors  exposed,  which  have  heretofore  prevailed. 

That  we  should  reprobate  the  teaching,  that  a  sworn  functionary 
of  the  constitution  may  obey  his  conscience,  against  its  provisions  — 
as  substantially  taught  by  the  quondam  North  American  Review,  and 
William  H.  Seward. 

That  we  should  stamp  with  infamy  the  idea  that  public  agents, 
sworn  to  use  the  powers  in,  and  not  to  use  those  out  of,  the  constitu- 
tion, may,  at  their  discretion,  use  the  latter  —  as  Henry  Ward  Beecher 
and  Thaddeus  Stevens  have  taught. 

That  our  leading  minds  should  try  to  get  (and  to  teach)  a  definite 
conception  and  clear  ideas  of  our  general  polity,  so  that  all  shall  real- 
ize that  it  is  a  superstructure,  built  of  facts,  which  are  as  palpable  as 
bricks  and  stones ;  that  in  truth  it  is,  as  Chief  Justice  Law  said,  in 
the  Connecticut  ratifying  convention,  "  like  a  vast  and  magnificent 
bridge,  built  on  thirteen  [now  thirty-eight]  strong  and  stately  pillars  ; 
and  that  the  occupants  of  said  *  fabric '  (i.  e.  the  federal  agency) 
would  be  foolish  and  wicked  to  '  knock  away  the  pillars  that  support 
it.'  "  [II.  Ell.  Deb.  201.] 

That  we  shall  always  be  victimized  by  "  fallacious  exposition  "  on 
this  subject  till  we  see,  and  confess,  and  keep  it  in  mind,  that  "  the 
people"  are  the  states,  and  that  the  states  are  the  people,  and  are 
the  only  political  form  in  which  the  people  ever  existed  or  acted  — 


270  FALLACIOUS   EXPOSITION. 

the  only  form,  indeed,  in  which  they  ever  had  capacity  to  act  in  gov- 
ernment. 

That  instead  of  the  union  being  preserved  by  sophistical  chains, 
backed  by  force,  the  original  motives  of  union,  justice  and  mutual 
interest,  should  be  promoted  and  relied  on ;  and  that  our  statesman- 
ship should  in  future  aim  to  settle  all  questions  on  such  righteous 
basis,  by  peaceful  methods. 

That,  above  all,  the  fixedness  and  sac-redness  of  the  written  defences 
of  our  "  blessings  of  liberty  "  should  be  secure  against  perversions 
and  unauthorized  changes ;  and  that  outlawry,  infamy,  and  universal 
anathema  should  be  the  fate  of  every  agent  of  the  people  who  betrays, 
in  any  respect,  the  sacred  trust  he  is  sworn  to  protect  and  defend  in 
all  its  parts  —  THE  CONSTITUTION  ! 


PART  IV. 


•VEREIGNTY  IN  THE  UNITED  STATES. 


"  WHAT  constitutes  a  state  ? 
Not  high-raised  battlements,  or  labored  mound, 

Thick  wall,  or  moated  gate : 
Not  cities  proud,  with  spires  and  turrets  crowned  ; 

No!  men,  high-minded  men! 

Men  who  their  duties  know, 
But  know  their  rights,  and  knowing,  dare  maintain, 

Prevent  the  long-aimed  blow, 
And  crush  the  tyrant,  while  they  rend  the  chain ; 

These  constitute  a  state : 
And  sovereign  law,  that  state's  collected  will, 
Sits  empress,  crowning  good  —  repressing  ill." 


PART  IV. 
SOVEREIGNTY  IN  THE  UNITED   STATES. 


CHAPTER  I. 
THE  GENESIS  OF  A  STATE. 

IN  the  republican  form  of  government,  society  governs  itself;  that 
is  to  say,  the  collective  people  govern  the  individual  people  — 
the  former  being  sovereign,  the  latter  subject.  Accordingly  all  the 
right  of  government,  in  our  country,  is  in  society,  as  formed ;  and 
hence  the  "general  government"  can  have  no  possible  authority, 
except  what  is  derived  from  the  states  —  the  state,  at  the  institution 
of  the  said  government,  being  the  only  form  of  society,  and  being 
then,  as  all  admit,  sovereign.  As  to  sovereignty,  or  "absolute  su- 
premacy," being  in  "the  government,"  Mr.  Webst'er  said,  in  his 
speech  of  1833:  "No  such  thing  as  sovereignty  of  government 
is  known  in  North  America.  .  .  .  With  us  the  people  alone  are 
sovereign."  So  said  James  Wilson,  in  the  Pennsylvania  ratifying 
convention :  "  The  sovereignty  is  in  the  people  before  they  make  a 
constitution,  and  remains  in  them  after  it  is  made."  [See  supra, 
p.  101.] 

No  respectable  denial  of  these  statements  has  ever  been  made,  and 
no  one  will  dare  to  deny  them. 

The  great  expounder  then  admits,  as  Wilson  states,  that  the  con- 
stitutors, in  constituting  government,  put  no  sovereignty  whatever 
in  it,  but  left  this  in  the  people. 

And  as  the  people  only  exist  and  have  capacity  to  act  in  government, 
as  states,  the  position  of  both  of  them  necessarily  is,  that  the  states  are 
sovereign. 

This  should  seem  to  end  controversy;  but  the  people,  who  are  the 
government,  must  have  an  understanding,  as  well  as  an  impression, 
of  the  truth,  so  that  when  the  hydra  heads  of  perversion  shall  here- 
after be  cut  off,  public  hate  will  cauterize  the  bleeding  necks,  and 
ever  prevent  renewal. 

18 


274  SOVEREIGNTY  IN  THE  UNITED   STATES. 

Therefore,  elaborate  and  instructive  presentation  is  necessary,  and 
herein  to  be  pursued.  And  in  the  process  it  will  be  shown  that 
genuine  American  history  and  exegesis  plainly  prove  :  1.  That  the 
states  are  sovereign  in  the  union;  and  2.  That  "the  government"  is 
a  mere  agency. 

The  whole  Subject  is  one  of  Pacts.  —  "What  political  system 
have  we  1 "  is,  as  I  have  before  said  —  a  question  of  fact,  and  must 
be  argued  as  such.  The  states  are  facts  ;  the  constitution  they  made 
is  a  fact ;  and  so  with  the  government.  An  ingot  of  gold,  a  bushel  of 
salt,  or  a  quintal  of  codfish,  cannot  be  more  precisely  weighed  and 
measured  than  they.  The  utterances  of  statesmen,  or  even  courts, 
cannot  make,  unmake,  or  in  anywise  change  such  facts.  When  once 
existent,  they  are  beyond  even  the  power  of  Jehovah !  If,  then,  a 
thousand  officials,  whether  political  or  judicial,  were  to  decide  our 
general  system  to  be  a  union  of  individual  men,  and  not  a  union  of 
states ;  or  that  the  sovereignty  is  in  tJie  government,  and  not  in  the 
commonwealths  of  people,  they  would  speak  in  vain ;  and  the  ques- 
tion would  still  remain  as  one  of  fact,  to  be  settled  by  proof.  The 
utterances  above  italicized  are,  and  must  forever  remain,  true  or 
untrue.  Force  cannot  settle  such  a  question.  War  never  did,  or 
could,  make  right  wrong,  truth  falsehood,  or  a  fact  not  a  fact.  To 
settle  the  question,  then,  we  must  adduce  the  evidence  that  proves 
the  state,  or  sovereignty,  just  as  we  would  prove  the  ingredients  of  a 
crime.  The  facts  must  fill  the  technical  description.  Truth  on  this 
subject  in  1788  was  true  in  1860.  The  foedus  was  a  fact  at  both 
epochs.  The  war  did  not  change  it,  no  matter  what  politicians  say, 
or  deluded  people  think  ! 

The  States  Themselves  are  the  Government.  —  We  have  hereto- 
fore seen  that  the  federal  constitution,  in  Articles  I.  and  VII.,  names 
the  thirteen  original  states  as  the  parties,  and  treats  them  as  such, 
while  all  the  rest  of  the  articles  are  corroborative,  and  give  no  sign  or 
hint  of  change,  as  to  the  geography,  organization,  character,  or  au- 
thority of  the  said  states.  I  have  already  shown  that  the  instrument 
repeatedly  characterizes  the  system  as  a  union  of  states;  that  the 
convention  unanimously  declared  that  "  the  government "  was  to  be 
"  the  united  states  "  themselves,  and  never  changed  their  view  [V.  Ell. 
Deb.  377]  ;  that  the  delegations  of  power  for  federal  government 
were  (not  to  the  government,  or  nation,  but)  to  "  the  united  states " 
[Amendment  X.];  that  the  word  "state,"  as  to  Massachusetts  and 
New  York,  meant  what  it  did  as  to  France  or  Spain  —  "a  body- 
politic,  or  society  of  men,  united  together  for  the  purpose  of  promot- 
ing their  mutual  safety  and  advantage,"  etc.  [Vattel ;  Fed.  Const. 
Art.  I.,  §  9  ;  III.,  §  2  ;  Amendment  XI.]  ;  and  finally,  that  the  personnel 


THE  GENESIS  OF  A  STATE.  275 

of  the  federal  agency  must  be  the  citizens  and  subjects  of  the  said 
states  —  each  state  choosing  her  own  part  of  them,  to  aid  in  the  said 
agency. 

The  States  are  so  many  Republics.  —  Webster  lays  down  the 
rule  that,  where  well-known  language  is  used  in  the  constitution,  it 
must  be  understood  in  its  well-known  sense.  And,  moreover,  Web- 
ster concedes  the  very  point  under  consideration,  when  he  says,  in  the 
"  Bank  of  Augusta  vs.  Earle  "  (13  Pet.  584),  that  the  jus  gentium  gov- 
erns all  questions  not  provided  for  in  the  constitution,  —  that  is  to 
say,  these  associated  nations  or  states  have  settled  by  agreement  all 
the  questions  or  subjects  the  constitution  includes,  but  have  left  all 
others  to  be  settled  as  they  arise  by  or  according  to  the  law  of  nations. 
The  federal  supreme  court,  in  the  same  case,  took  the  same  view. 
Massachusetts,  then,  on  becoming  independent,  was  as  complete  a 
nation  as  France,  and  possessed  the  same  absoluteness  of  will  as  well 
as  supremacy  and  exclusiveness  of  control  over  her  territory  and 
citizens.  Though  one  was  infantile  and  weak,  and  the  other  a  first- 
class  power,  they  were  alike  and  equal  in  the  eye  of  public  law  j  they 
had  the  same  organism  and  nature ;  the  life  or  power  of  each  was 
peculiar,  exclusive,  vital,  and  precious  to  her;  and  self-preservation 
was  the  first  law  of  nature  to  both  alike,  just  as  it  is  to  men  and 
inferior  animals. 

Nay,  more,  Massachusetts  in  1780  promulgated  these  very  ideas 
in  her  constitution,  as  I  have  shown,  and  she  has  maintained  them 
therein  to  the  present  day.  [Appendix  E,  No.  2.] 

Unquestionably,  then,  our  general  constitution  of  government  is  a 
league,  or  the  result  of  a  league,  "  between  the  states  ratifying  the 
same  ;  "  and  the  government  provided  for  is  necessarily  an  agency  of 
the  said  states,  and  subordinate  to  them,  for  they  were  the  sole  and 
exclusive  actors  and  sources  of  authority.  Such  was,  as  I  have  here- 
tofore conclusively  shown,  the  theory  of  the  federalists  at  the  making 
of  the  constitution. 

The  Case  exemplified  by  Pennsylvania.  —  The  growth  or  forma- 
tion of  an  American  commonwealth,  and  the  principles  of  political 
philosophy  involved,  can  well  be  exemplified  and  illustrated  by  the 
case  of  Pennsylvania.  Through  generations,  she  grew,  and  finally 
became  complete  in  organism,  independent,  and  absolutely  self-gov- 
erning, —  a  political  and  moral  being,  endowed  with  perceptive  facul- 
ties, reason,  judgment,  and  will,  incapable  of  politically  acting  except 
as  a  body,  the  people  who  formed  her  reserving  no  shadow  of  political 
power,  but  being  governed,  in  all  respects,  by  the  will  of  her  as  a 
body-politic.  This  authority  was  exclusive  of  all  other,  and,  as  Mr. 
Curtis  admits,  was  the  highest  on  earth,  as  to  the  people  and  territory 


276  SOVEREIGNTY  IN  THE   UNITED   STATES. 

where  it  existed.  There  was,  in  Pennsylvania,  no  possible  chance  for 
any  other  authority  to  act,  in  forming  the  federal  constitution,  and 
commanding  her  people's  obedience  to  it ;  and  we  shall  see  that  this 
body,  called  Pennsylvania,  absolutely  and  finally  acted,  in  becoming 
a  party  to  the  said  federal  constitution,  and  giving  the  federal  agency, 
which  was  provided  for,  directed,  and  restricted  therein,  its  only 
authority  over  the  people. 

The  Origin  of  Pennsylvania.  —  In  1681,  Charles  II.,  out  of  per- 
sonal regard  for  William  Penn,  and  gratitude  for  the  services  of  Penn's 
father,  —  the  admiral  of  that  name,  who  in  1665  defeated  the  Dutch 
fleet  under  Herr  von  Opdam,  — granted  to  the  said  William,  his  heirs 
and  assigns,  "  all  that  tract  or  part  of  land  in  America,"  since  called 
Pennsylvania,  and  did  "make,  create,  and  constitute  them  the  true 
and  absolute  proprietaries  of  the  country  aforesaid,  saving  always  unto 
us,  our  heirs  and  successors,  the  sovereignty  of  the  said  countries." 
Penn  and  his  heirs  governed,  under  the  sovereignty  of  England,  for 
nearly  one  hundred  years.1 

The  first  Step  of  making  the  Province  a  State.  —  In  1776,  from 
the  18th  to  the  25th  of  June,  a  provincial  conference  was  held  in 
Carpenter's  Hall,  Philadelphia,  composed  of  about  one  hundred  of  the 
leading  men  of  the  province,  for  the  purpose  of  forming  a  government 
to  supplant  the  British.  This  conference  resolved  unanimously,  among 
other  things,  "  That  it  is  necessary  that  a  provincial  convention  be 
called  by  this  conference,  for  the  express  purpose  of  forming  a  new 
government  in  this  province  on  the  authority  of  the  people  only."  And 
"without  one  dissenting  voice,"  they  agreed  "  that  every  associator  in 
the  province  shall  be  admitted  to  vote  for  members  of  the  convention," 

1  I  will  here  note  some  of  his  views,  which  are  instructive.  He  wrote  to  Robert 
Turner,  January  5,  1681:  "It  is  a  clear  and  just  thing,  and  my  God  that  has  given  it 
me  through  many  difficulties,  will,  I  believe,  bless  and  make  it  the  seed  of  a  nation. 
I  shall  have  a  tender  care  to  the  government,  that  it  be  well  laid  at  first."  In  his  state- 
ment prefatory  to  the  "frame  and  laws  "  of  his  government  are  the  following  passages: 
"Any  government  is  free  to  the  people  under  it  (whatever  be  the  frame)  where  the  laws 
rule,  and  the  people  are  a  party  to  those  laws."  "  There  is  hardly  one  frame  of  govern- 
ment in  the  world  so  ill  designed  by  its  first  founders  that,  in  good  hands,  would  not  do 
well  enough.  .  .  .  Governments,  like  clocks,  go  from  the  motion  men  give  them :  so  by 
them  they  are  ruined,  too.  ...  Let  men  be  good,  and  the  government  cannot  be  bad. 
But  if  men  be  bad,  let  the  government  be  never  so  good,  they  will  endeavor  to  warp  and 
spoil  it  to  their  turn.  I  know  some  say,  let  us  have  good  laws,  and  no  matter  for  the 
men  that  execute  them ;  but  let  them  consider  that,  though  good  laws  do  well,  good 
men  do  better,  for  good  laws  may  want  good  men,  and  be  abolished  or  invaded  by 
ill  men,  but  good  men  will  never  lack  good  laws  nor  suffer  ill  ones.  ...  A  loose  and 
depraved  people  love  laws  and  an  administration  like  themselves.  That,  therefore, 
which  makes  a  good  constitution  must  keep  it,  viz.,  men  of  wisdom  and  virtue,  qualities 
that,  because  they  descend  not  with  worldly  inheritances,  must  be  carefully  propagated 
by  a  virtuous  education  of  youth,  for  which  after-ages  will  owe  more  to  the  care  and 
prudence  of  founders,  and  the  successive  magistracy,  than  to  their  private  patri- 
monies." 


THE  GENESIS  OF  A  STATE.  277 

provided  he  is  twenty-one  years  old,  has  resided  one  year  in  the  prov- 
ince, has  paid  taxes,  etc.  They  agreed  also  that  the  voters  and  mem- 
bers of  the  convention  "should  change  their  allegiance,"  the  oath 
prescribed  for  the  members  being  as  follows :  "  I,  A.  B.,  do  declare 
that  I  do  not  hold  myself  bound  to  bear  allegiance  to  George  III.,  .  .  . 
and  tlmt  I  will  steadily  and  firmly  oppose  the  tyrannical  proceedings 
of  the  King  and  Parliament,  .  .  .  and  [consent  ?J  to  establish  and 
support  a  government  in  the  province  on  the  authority  of  the  people  only'1 
On  Sunday,  June  23d,  they  did  their  largest  day's  work,  and  at  the 
conclusion  thereof  they  adopted  an  address  "  to  the  people  of  Pennsyl- 
vania" which  commences  as  follows  :  "  Friends  and  countrymen  :  In 
obedience  to  the  power  we  derived  from  you,  we  have  fixed  upon  a 
mode  of  electing  a  convention  to  form  a  government  of  the  province  of 
Pennsylvania,  under  the  authority  of  the  people.  .  .  .  We  need  not 
inform  you  of  the  importance  of  the  trust  you  are  about  to  commit  to 
them  ;  your  liberty,  safety,  happiness,  and  everything  that  posterity 
will  hold  dear  to  them  to  the  end  of  time  will  depend  upon  their 
deliberations."  And  on  Monday,  June  24th,  they  declared  that 
George  III.,  "in  violation  of  the  principles  of  the  British  constitu- 
tion, and  of  the  laws  of  justice  and  humanity,  .  .  .  hath  lately  pur- 
chased foreign  troops  to  assist  in  enslaving  us,  and  hath  excited  the 
savages  of  this  country  to  carry  on  a  war  against  us,  as  also  the 
negroes  to  imbrue  their  hands  in  the  blood  of  their  masters,  in  a 
manner  unpracticed  by  civilized  nations,  and  hath  lately  insulted  our 
calamities  by  declaring  that  he  will  show  us  no  mercy  until  he 
reduces  us  ;  "  and  that  "  the  obligations  of  allegiance  (being  recipro- 
cal between  a  king  and  his  subjects)  are  now  dissolved  on  the  side  of 
the  colonists  by  the  despotism  of  the  said  king,  insomuch  that  it 
now  appears  that  loyalty  to  him,  is  treason  to  the  good  people  of  this 
country."  And  they  further  declared  as  follows  :  "  We,  the  deputies 
of  the  people  of  Pennsylvania  assembled  ...  to  form  a  plan  ...  for 
suppressing  all  authority  in  this  province,  derived  from  the  crown  of  Great 
Britain,  and  for  establishing  a  government  based  upon  the  authority  of 
the  people  only,  now,  .  .  .  with  the  approbation,  consent,  and  authority 
of  our  constituents,  unanimously  declare  our  ivillingness  to  concur  in  a 
vote  of  the  congress,  declaring  the  united  colonies  free  and  indepen- 
dent states  :  Provided  the  forming  the  government,  and  the  regulation 
of  the  internal  policy  of  this  colony,  be  always  reserved  to  the  people  of 
this  colony." 

Another  manifesto  of  this  provincial  conference,  "  to  the  Associators 
of  Pennsylvania,"  says  their  design  is  to  "  put  an  end  to  their  own 
power  in  the  province,"  "  by  calling  a  convention  to  form  a  govern- 
ment under  the  authority  of  the  people;"  and  continues  as  follows: 


278  SOVEREIGNTY   IN   THE   UNITED   STATES. 

"You  are  about  to  contend  for  permanent  freedom,  to  be  supported 
by  a  government  which  will  be  derived  from  yourselves,  and  which  will 
have  for  its  object,  not  the  emolument  of  one  man  or  class  of  men 
only,  but  the  safety,  liberty,  and  happiness  of  every  individual  in  the 
community." 

The  State  or  Nation  completed.  —  The  convention  provided  for 
was  duly  elected,  and  it  met  and  deliberated  from  the  15th  of  July  to 
the  28th  of  September,  1776.  The  following  is  the  commencement 
of  the  organic  law  established  :  "  We,  the  representatives  of  the  free- 
men  of  Pennsylvania,  in  general  convention  met,  .  .  .  do,  by  virtue  of 
the  authority  vested  in  us  by  our  constituents,  ordain,  declare,  and  estab- 
lish the  following  declaration  of  rights  and  frame  of  government  to  be 
the  constitution  of  this  commonwealth,  and  to  remain  in  force  therein, 
forever  unaltered,  except  in  such  articles  as  shall  hereafter,  on  expe- 
rience, be  found  to  require  improvement,  and  which  shall,  by  the  same 
authority  of  the  people,  fairly  delegated,  as  this  frame  of  government 
directs,  be  amended  or  improved,  for  the  more  effectual  obtaining 
and  securing  the  great  end  and  design  of  all  governments,  herein- 
before mentioned." 

Thus  was  Pennsylvania  established  as  a  state.  The  people  all  as- 
sented to  the  association,  and,  as  a  society,  they  assumed  sovereignty, 
that  of  Great  Britain  being  ipso  facto  displaced.  They  declared,  in 
the  above-mentioned  organic  law,  by  virtue  of  their  sovereignty  and 
as  matters  of  original  and  unlimited  right,  as  follows  :  "We,  the  people 
of  the  commomvealth  of  Pennsylvania,  ordain  and  establish  this  consti- 
tution .  .  .  ALL  POWER  is  INHERENT  IN  THE  PEOPLE,  and  all  free 
governments  are  founded  on  their  authority,  and  instituted  for  their 
peace,  safety,  and  happiness."  "  The  community  hath  an  indubitable, 
inalienable,  and  indefeasible  right  to  reform,  alter,  or  abolish  govern- 
ments, in  such  a  manner  as  shall  be,  by  that  community,  judged  most 
conducive  to  the  public  weal."  "  All  officers  of  the  government  are 
their  trustees  and  servants,  and  at  all  times  accountable  to  them." 
[See  the  Pa.  Dec.  of  Rights.] 

Now,  where  is  the  national  idea,  which  the  Lincolns  of  the  country 
say  originated  at  this  period "?  No  other  right  of  government  over 
the  people  of  Pennsylvania  is  here  recognized  than  their  own  as  a  peo- 
ple. The  allegiance  to,  and  government  of,  the  king  is  done  away 
with,  and  —  what  is  the  substitute  1  "  The  government  of  the  peo- 
ple only '."  What  people1?  "  The  people  of  Pennsylvania"  These  are 
the  very  words.  No  sovereignty  or  original  authority  whatever  is 
recognized  as  being  out  of  the  state.  These  provisions  remain  in 
her  constitution  to  this  day,  though,  in  1790,  she  held  a  conven- 
tion to  conform  the  said  fundamental  law  to  the  federal  "  supreme 


THE  GENESIS  OF  A  STATE.  279 

law  "  she  had  just  agreed  to,  both  laws  being  alike  the  offspring  of  her 
will. 

No  candid  man  can  fail  to  see  in  Pennsylvania  the  state  or  nation. 
Says  Vattel  (Chap.  I.  §  1):  "A  nation  or  state  is  a  body-politic  or 
society  of  men  united  together,  for  the  purpose  of  promoting  their 
mutual  safety  and  advantage  by  their  combined  strength."  This  is 
precisely  the  description  given  by  Judge  Story  in  his  commentaries. 
[Vol.  I.  §  207.] 

And  to  this  day  there  has  never  been  ordained,  or  even  thought  of, 
by  the  said  people,  one  single  line  transferring  or  abating  her  abso- 
lutely sovereign  authority  of  government ;  but  she  has  merely  dele- 
gated to  her  "  trustees  and  servants,"  in  her  federal  and  state  agencies, 
numerous  "  powers  "  of  government,  which  are  to  be  held  and  wielded 
by  her  citizens  and  subjects  for  her  benefit,  she  retaining  the  ulti- 
mate governing  power  over  her  territory  and  people,  entirely  and 
absolutely. 

As  all  the  people  of  Pennsylvania  consented,  actively  or  passively, 
to  these  proceedings  and  declarations,  they  consummated  and  became 
bound  in  the  republican  social  compact,  this  being  completed  when 
the  independence  of  the  state  was  established.  This  was  a  union  of 
people,  forming  a  body-politic,  and  it  is  the  only  union  of  people  ever 
formed.  Subsequently,  Pennsylvania,  as  such  body-politic  or  com- 
monwealth, associated  herself  with  her  sister  states,  and  with  them 
made  a  union  of  states.  How  did  she  do  it  1  She  held  a  convention ; 
she  examined  the  federal  plan  proposed ;  it  was  stated  in  said  conven- 
tion by  Chief  Justice  McKean,  nem.  dis.,  that  the  convention  derived 
its  whole  power  from  "  the  people  of  Pennsylvania,"  and  was  elected 
solely  "to  ratify"  or  "to  reject"  the  said  federal  plan  [II.  Ell.  Deb.. 
530] ;  and  the  ratification  was  "in  the  name  and  by  the  authority  of" 
"the  people  of  the  commonwealth."  [I.  Ell.  Deb.  319.]  Thus,  as  a 
body-politic,  she  gave  existence  and  jurisdiction  to  the  federal  govern- 
ment in  Pennsylvania.  Thus,  as  a  sovereign,  she  confederated,  and 
became  one  of  "  the  united  states." 

Webster  wrote,  in  1819:  "The  only  parties  to  the  constitution, 
contemplated  by  it  originally,  were  the  thirteen  confederated  states." 
In  1850,  he  said  "the  states  are  united,  confederated,"  and  that 
"  the  constitution  is  the  bond,  and  the  only  bond,  of  the  union  of 
these  states." 

His  inconsistent  utterances  of  1830  and  1833  were  simply  the 
sophistry  of  the  advocate. 

No  parties  to  the  constitution  but  states  were  ever  contemplated. 
Chancellor  Pendleton,  the  president  of  the  ratifying  convention  of 
Virginia,  expressed  in  that  body,  most  forcibly,  the  universal  under- 


280  SOVEREIGNTY  IN  THE  UNITED   STATES. 

standing:  "If  we  (the  people  of  Virginia)  find  it  to  our  interest  to  be 
intimately  connected  with  the  other  twelve  states  to  establish  one 
common  government,  and  bind  in  one  ligament  the  strength  of  thir- 
teen states,  we  shall  find  it  necessary  to  delegate  powers  proportion- 
ate to  that  end."  [III.  Ell.  Deb.  298.] 

In  fine,  as  Pennsylvania  and  her  sister  republics  created  the  federal 
government,  and  delegated  its  entire  authority,  our  general  system 
can  but  be  a  confederacy  of  absolute  sovereigns,  —  no  authority  on 
earth  being  above  them  collectively,  or  —  as  they  are  equals  —  indi- 
vidually. 

In  the  next  two  chapters  I  will  treat  of  the  social  compact,  as  ex- 
hibited in  the  case  of  Pennsylvania,  and  show  the  absurdity  of  the 
modern  idea,  sophistically  taught  by  Story,  Webster,  Curtis,  and  others, 
that  the  federal  constitution  had  the  effect  of  forming  a  nation,  and 
of  consolidating  and  degrading  the  states  to  provinces  or  counties,  or 
rather  dissolving  them,  and  forming  their  elements  into  a  new  nation; 
for  this  is  the  practical  result  of  the  modern  Massachusetts  theory, 
which  every  word  of  the  federal  pact  condemns,  while  no  line  of  his- 
tory or  writing  of  the  fathers  supports  it. 


CHAPTEE  IT. 
THE  REPUBLICAN  SOCIAL  COMPACT. 

THE  object  of  all  society  is  the  protection  and  welfare  of  the  indi- 
dividual  members.  In  a  monarchy  or  hereditary  aristocracy, 
society  is  preserved,  and  the  members  protected,  without  regard  to 
their  will  —  the  man  or  class  that  rules  keeping  authority  by  force  ; 
while  in  a  republican  society  the  members  are  voluntarily  associated, 
and  the  society  governs  itself.  The  so-called  government,  being  com- 
posed solely  of  representatives,  is  necessarily  an  agency,  and  the 
sovereignty,  or  right  of  self-government  of  the  community,  is  in  no 
wise  impaired  by  the  imparting  or  delegating  of  power  to  the  said 
so-called  government. 

A  republic  is  founded  on  the  principle  of  man's  free  moral  agency. 
As  God  made  him,  and  endowed  him  with  the  social  instinct,  both  he 
and  the  society  he  forms  are  God's  productions.  As  man  is  finally  to 
account  for  his  action  here,  he  necessarily  has  the  power  of  self- 
control,  —  the  faculty  of  choosing  between  good  and  evil,  —  the  op- 
tion to  obey  or  disobey.  His  final  accountability  were  unjust  if  he 
has  no  free  will  or  volition  as  to  government.  It  seems  then,  that, 
individually  and  collectively,  man  is  capable  of,  and  entitled  to,  self- 
government,  and  that  the  only  divine  right  of  government  on  earth  is 
self-government.  May  we  not  assume,  then,  that  the  republic  is  God's 
form  of  polity  1 

The  difference,  in  political  condition,  between  a  man  in  a  monarchy 
and  one  in  a  republic,  is  that  in  the  former  he  is  held  by  force  to  an 
indissoluble  allegiance,  while  in  the  latter  he  is  free  to  remain  a 
member,  or  to  expatriate  himself. 

The  Social  Compact  of  Pennsylvania.  —  In  the  case  of  Pennsyl- 
vania, the  citizens  participated  in,  or  consented  to,  the  proceedings  or 
declarations  set  forth  in  the  preceding  chapter  on  "the  genesis  of 
a  state ; "  and  as  he  was  then,  and  ever  afterwards,  free  to  remain  a 
part  of  the  commonwealth,  or  to  expatriate  himself,  he,  by  remaining, 
necessarily  subjected  himself  to  the  social  compact,  and  to  the  obliga- 
tions thereof. 


282  SOVEREIGNTY  IN  THE  UNITED   STATES. 

Was  he  thus  free  1  Let  Pennsylvania  herself  answer :  "  Emigra- 
tion from  this  state  shall  not  be  prohibited."  [See  her  const.]  What 
says  Vermont  1  "  That  all  people  have  a  natural  and  inherent  right 
to  emigrate  from  one  state  to  another  that  will  receive  them."  [See 
her  const. ;  also  const,  of  La.,  and  others.]  However,  such  a  dec- 
laration is  supererogatory,  for  the  principle  is  vital  to  a  republic,  as 
will  be  seen. 

Contemporaneous  Expositions.  —  I  will  now  present  expositions 
of  the  fathers  on  this  subject,  which  no  one,  in  those  days,  dared  to 
controvert.  These  are  for  the  double  purpose  of  setting  forth  these 
first  institutes  of  freedom,  and  for  confronting  the  perverters  with 
authorities  they  cannot  deny,  or  sophisticate  away. 

Said  Tench  Coxe,  of  Pennsylvania,  in  one  of  his  masterly  papers 
in  favor  of  the  plan  of  the  convention  of  1787:  "The  principle  on 
which  free  sovereignties  ought  to  confederate  is  quite  a  new  question. 
.  .  .  Most  of  the  states  being  in  possession  of  free  governments,  some 
have  looked  for  the  same  forms  in  a  confederating  instrument,  which 
they  have  justly  esteemed  in  their  several  social  compacts."  He  dis- 
tinguishes clearly  between  the  formation  of  a  society  of  people,  i.  e.  a 
commonwealth,  and  a  society  of  states,  i.  e.  a  confederacy.  [See  Am. 
Mus.  for  1788.] 

John  Dickinson,  who  had  been  president  of  Pennsylvania  and  of 
Delaware,  and  was  one  of  the  ablest  statesmen  and  political  writers 
of  that  period,  made,  in  his  powerful  arguments  in  favor  of  the  new 
federal  system,  the  same  distinction  that  Coxe  did  between  the  con- 
stituted league  of  states,  then  being  formed,  and  the  social  compact 
by  which  individuals  formed  the  state.  [II.  Pol.  Writings.] 

Said  Noah  Webster,  in  his  American  Magazine  for  December,  1787, 
"  The  whole  body  of  people  in  society  is  the  sovereign  power,  or  state, 
which  is  called  the  body-politic.  Every  man  forms  a  part  of  this 
state,  and  so  has  a  share  in  this  sovereignty :  at  the  same  time,  as  an 
individual,  he  is  a  subject  of  the  state." 

Decisive  Testimony  of  Massachusetts. —  Passing  by  the  numerous 
evidences  and  recognitions  of  this  theory  in  the  constitutions  and 
bills  of  rights  of  the  other  original  states,  let  us  quote  Massachusetts 
herself,  and  let  her  refute  the  arguments  and  assertions  of  her  sons. 
In  the  preamble  to  her  constitution  she  says  :  "  The  body-politic  is 
formed  by  a  voluntary  association  of  individuals.  It  is  a  social  com- 
pact, by  which  the  whole  people  covenants  with  each  citizen,  and 
each  citizen  with  the  whole  people,  that  all  shall  be  governed  by  cer- 
tain laws  for  the  common  good ; "  and  that  government  is  instituted 
and  administered  "  to  secure  the  existence  of  the  body-politic,"  and 
protect  "  the  individuals  who  compose  it,"  in  "  their  natural  rights, 


THE  REPUBLICAN  SOCIAL  COMPACT.  283 

and  the  blessings  of  life."  Therefore,  in  the  said  organic  law  she 
declares  as  follows :  "  The  people  inhabiting  the  territory  formerly 
called  the  Province  of  Massachusetts  Bay,  do  hereby  solemnly  and 
mutually  agree  with  each  other  to  form  themselves  into  a  free,  sove- 
reign and  independent  body-politic,  or  state,  by  the  name  of  the 
Commonwealth  of  Massachusetts."  She  further  declares  that  she  has 
"the  sole  and  exclusive  right  of  governing"  herself  as  a  sovereign; 
that  she  will  forever  exercise  this  right;  that  she  can  "institute," 
"reform,"  or  "totally  change"  all  government  at  will;  that  all  citi- 
zens are  her  subjects ;  and  that  all  functionaries  of  government  are 
her  "  substitutes  and  agents." 

Here  is  the  deliberate  and  solemn  statement  of  the  members,  that 
they  have  formed  themselves  into  a  body-politic  —  a  commonwealth 
—  a  sovereign  state.  We  cannot  gainsay  or  go  behind  this  declara- 
tion. They  make  repeated  statements  of  their  sovereignty.  [See 
constitution  of  Massachusetts.]  And  all  the  states  at  the  same  time 
solemnly  agreed,  by  treaty,  that  each  "retains  her  sovereignty." 

By  "  sovereignty,"  I  do  not  mean  government,  but  the  right  of 
absolute  control  in  all  things,  including  the  right  to  establish  govern- 
ments, i.  e.  governmental  agencies.  It  must  be  kept  in  mind  that 
the  word  sovereignty  has  but  one  meaning  —  that  of  supreme  and 
uncontrollable  authority.  [See  Webster's  dictionary,  and  all  others.] 
Hence  it  cannot  be  predicated  of  the  so-called  government,  or  powers  of 
government,  in  a  republic,  for  these  must  always  be  subject  to  the  organ- 
ized people  —  the  commonwealth.  As  sovereignty  in  a  republic  neces- 
sarily includes  the  right  to  establish,  amend,  and  abolish  governments, 
it  is  simply  absurd  to  say  a  government  in  a  republic  is  sovereign. 

It  is  certain,  then,  from  the  testimony  of  this  and  other  states, 
that  a  sovereign  commonwealth  was  formed  and  consummated  by 
social  compact ;  and  that  it  existed  and  acted  as  such,  in  making  the 
union  or  federal  system. 

The  Rationale  of  Our  Social  Compact.  —  It  is  obvious  that  if  a 
man  can  change  his  membership  from  one  commonwealth  to  another, 
he  is,  by  remaining  in  the  first,  under  the  obligation  of  being  a  part 
of  it ;  of  being  governed  by  it ;  and  of  performing  all  the  various 
duties  which  its  existence  and  welfare  requires  of  him ;  the  reciprocal 
obligations  on  the  society's  part  being  the  protection  of  him  in  his 
life,  liberty,  and  means  of  happiness.  This  mutual  understanding, 
and  the  reciprocal  obligations  thereof,  do  exist,  and  are  the  actual 
conditions  of  the  society's  existence.  They  constitute  all  the  elements 
of  a  compact,  which,  though  only  implied,  form  not  the  less  the  politi- 
cal and  philosophical  entity.  By  and  through  such  social  compact, 
the  republic  must  exist. 


284  SOVEREIGNTY  IN  THE   UNITED   STATES. 

The  members  are  the  community ;  and  each  of  them  is  obviously 
merged  in  it,  and  entirely  subject  to  its  control.  His  political  status 
is  fixed,  and  his  citizenship  is  an  integral  part  of  the  community. 
From  the  nature  of  the  case,  he  can  reserve  no  political  rights ;  so 
that  the  idea  of  his  co-operating  with  the  citizens  of  all  the  states, 
to  form  a  nation  by  a  second  social  compact,  is  too  absurd  for  com- 
ment. The  matter  of  organizing  society  had  been  completed.  Each 
state  had  every  possible  characteristic  of  a  nation,  and,  whether  it  fed- 
erated or  remained  single,  it  could  act  as  such,  for  it  was  a  moral 
person,  with  all  mental  attributes,  including  will.  In  forming  the 
union,  then,  the  matter  in  hand  was  government,  not  organization 
of  society.  Government  could  but  be  delegative,  and  if  society  was 
not  already  completed,  and  capacitated  for  political  action,  it  was 
incapable  of  doing  the  delegation.  Preformed  states  did  actually 
do  such  delegation,  and  they  were  named  in  the  compact  as  the 
bodies  to  constitute,  and  carry  on,  the  federal  system  of  government. 
The  states,  then,  being  perfect  political  bodies,  the  citizens  were 
merged  completely  therein :  and  could,  in  no  way,  act  again  in  form- 
ing society. 

Aiming  to  make  my  argument  of  the  best  possible  and,  in  the 
main,  undisputed  authorities,  I  quote  the  following  :  Vattel,  in  Book 
I.,  Chap.  I.,  after  describing  the  nation  or  state,  proceeds  :  [§  2]  "  By 
the  very  act  of  the  civil  or  political  association,  each  citizen  subjects 
himself  to  the  authority  of  the  entire  body,  in  everything  that  relates 
to  the  common  welfare.  The  authority  of  all  over  each  member 
essentially  belongs  to  the  body  politic  or  state." 

In  Chapter  II.,  §  16,  he  says  :  "  In  the  act  of  association,  by  virtue 
of  which  a  multitude  of  men  form  together  a  state  or  nation,  each 
individual  has  entered  into  engagements  with  all,  to  promote  the  gen- 
eral welfare,  and  all  have  entered  into  engagements  with  each  indi- 
vidual, to  facilitate  for  him  the  means  of  supplying  his  necessities, 
and  to  protect  and  defend  him.  It  is  manifest  that  these  reciprocal 
engagements  can  be  no  otherwise  fulfilled  than  by  maintaining  the 
political  association.  The  entire  nation,  then,  is  obliged  to  maintain 
that  association ;  and  as  their  preservation  depends  on  its  continu- 
ance, it  thence  follows  that  every  nation  is  obliged  to  perform  the 
duty  of  self-preservation."  "This  obligation,"  he  further  says,  "is 
natural  to  each  individual  of  God's  creation,  and  is  derived  to  nations 
from  the  agreement  by  which  civil  society  is  formed  :  ...  it  sup- 
poses a  human  act,  to  wit,  the  social  compact."  See  to  the  same 
effect,  I.  Blackstone,  47 ;  also  Lieber's  view  [Pol.  Eth.  Chap.  VIII. 
§  917].  The  above  statement  of  Vattel  is  correct  and  philosophical, 
at  least  as  far  as  the  law  of  being  of  a  republic  is  concerned.  Further, 


THE  REPUBLICAN  SOCIAL  COMPACT.  285 

the  present  author  saith  not.  ROUSSEAU,  in  his  "  Treatise  on  the 
Social  Compact"  [Ch.  VI.],  most  conclusively  sets  forth  the  repub- 
lican social  compact,  and  states  the  object  of  the  association  to  be, 
"  to  protect  and  defend,  with  the  whole  force  of  the  community,  the 
persons  and  property  of  each  individual."  And  HUME,  though  writ- 
ing before  the  British  provinces  became  American  republics,  fore- 
casted or  recognized  the  very  principle  of  the  social  compact,  which 
became  the  law  of  their  being,  as  states.  [Hume's  Essays,  No.  XII.] 
And  the  great  Burke  said  :  "  Society  is  indeed  a  contract."  [See 
his  French  Revolution.] 

But  let  us  take  a  step  further.  These  bodies  were  formed  for  self- 
government,  and 

Government  is  Mental  and  Functional.  —  All  acts  of  government 
are  acts  of  mind,  and  mind  must  dwell  in  a  body,  and  act  through  its 
organs.  In  our  system,  the  only  possible  body  for  original  governing 
mind  to  dwell  in,  is  an  organized  society  of  people  —  a  state.  And 
whatever  is  done  in  making  institutions  of  government,  and  putting 
them  in  force,  through  laws  and  the  execution  thereof,  must  be  func- 
tional (for  such  acts  are  precisely  what  society  and  its  mind  were 
made  for),  just  as  thinking  is  functional  to  the  brain,  and  digesting 
to  the  stomach.  Hence  such  action  in  no  wise  touches,  let  alone 
impairs  or  changes,  the  existence,  essentials,  or  authority  of  the 
commonwealth.  And  it  is  of  this  mind  and  its  right  of  investi- 
gating, thinking,  reasoning,  judging,  and  willing,  that  sovereignty 
is  alone  predicated.  And  this  dwells  —  not  in  persons,  but  —  in  the 
collective  mind  of  the  people  —  in  the  corporate  body  called  the 
commonwealth,  republic,  or  state  —  the  "  moral  person "  as  Vattel 
and  others  call  it ;  "  the  moral  collective  body,"  to  use  Rousseau's 
phrase. 

Constituting  the  General  Government  was  Functional.  —  It 
follows  from  the  above,  that  ordaining  and  establishing  the  consti- 
tution was  functional  action  of  the  states.  They  could,  and  did, 
through  their  deputies,  meet  in  "  the  convention  of  states,"  as  Ham- 
ilton and  others  called  it,  and  deliberate  upon  and  mature  a  plan  of 
union  and  government.  They  could  and  did  send  the  plan  to  the 
congress  of  themselves.  They  could  and  did,  in  congress,  send  the 
plan  to  each  one  of  themselves,  for  separate  adoption  or  rejection. 
Each  state  could  and  did,  of  her  own  motion,  in  her  own  time,  and 
wherever  she  pleased,  call  a  convention  to  say  whether  she  would  join 
the  "  union  of  states,"  and  be  one  of  "  the  united  states,"  or  not. 
Each  was  unlimited  as  to  deliberation,  and  as  free  to  reject  as  adopt. 
All  finally  adopted,  thus  doing  the  only  acts  history  mentions,  or  even 
hints  at,  towards  ordaining,  establishing,  and  vivifying  the  constitu- 


286  SOVEREIGNTY  IN  THE  UNITED   STATES. 

tion.  And  afterwards,  in  the  same  functional  way,  each  chose  and 
sent  her  allotted  part,  or  quota,  of  the  personnel  of  the  government, 
to  administer  it — those  she  sent,  being  her  own  "members,"  "citi- 
zens," "substitutes,"  and  "agents,"  as  all  the  fathers  and  all  the 
states  considered  and  called  them.  And,  finally,  upon  this  point,  the 
right  to  amend  — identical  with  the  right  to  abolish  —  is  to  be  exer- 
cised functionally  by  the  states — [See  Article  V.]  this  indicating  the 
continued  existence  of  the  state,  with  the  same  mental  machinery  to 
amend,  that  adopted,  and  necessitating  the  same  functional  action  in 
the  future. 

A  Clear  Conception  of  the  States  is  needed,  and  by  a  moment's 
thought  the  reader  can  get  as  precise  and  clearly  denned  an  idea  of 
them,  as  he  can  of  thirteen  men,  horses,  dogs,  steamboats,  or  eggs. 
Thirteen  entities,  or  pre-existent  things  called  states,  were  named  and 
provided  for  in  the  constitution,  as  the  united  states.  They  had 
already  appeared  in  history,  and  often  acted.  Look  at  their  names, 
and  reflect.  The  word  Pennsylvania  (or  Massachusetts),  for  instance, 
means  a  distinct  thing,  with  area,  people,  organization,  mind,  power, 
right,  duty  —  all  distinct  and  peculiar.  Such  entities  (and  there 
were  thirteen  of  them)  were  unsusceptible  of  being  made  one,  without 
being,  ipso  facto,  destroyed.  If  their  people  were  then  made  into  one 
state,  they  cannot  now  be  united  states.  This  shows  why  Webster 
said,  in  1850,  —  near  the  close  of  his  life  —  as  heretofore  quoted: 
"  The  states  are  united,  confederated  —  not,  chaos-like,  together 
crushed  and  bruised."  "The  constitution  is  the  only  bond  of  the 
union  of  these  states."  See  also  his  remarkable  speech  in  1852,  at 
Annapolis.  [See  p.  210,  supra.~] 

Divine  Right.  —  The  mind  and  capacity  for,  and  the  right  to,  self- 
government,  are  Divine  creations  and  gifts,  whether  in  a  person  or 
society ;  and  such  mind  is  alike  the  seat  of  self-government,  arid  of 
the  instinct  of  self-preservation.  Self-control,  both  of  persons  and 
states,  and  human  accountability  therefor,  are  the  only  ideas  on 
this  subject  that  consist  with  the  revealed  plan  of  the  Almighty 
Father  and  Governor.  And  to  assail  either  person  or  state  with 
violence,  is  attacking  one  of  God's  beings,  for,  as  man  is  created  with 
a  social  nature,  society,  not  less  than  man  himself,  is  a  creation  of 
Deity. 

The  Divinely  ordered  social  instinct,  then,  causes  society.  This 
republic,  commonwealth,  or  state,  has  the  God-given  right  of  self- 
government,  which  it  exercises  through  mind,  and  functionally.  It 
and  its  fellows  get  together,  in  federal  or  league-al  compact,  volun- 
tarily. When  did  involuntariness  come,  so  as  to  make  the  indis- 
soluble union  1 


THE  REPUBLICAN   SOCIAL  COMPACT.  287 

If  named  pre-existent  bodies  of  people  were  united  or  associated, 
how  did  the  said  bodies  lose  their  separate  integrity,  so  as  to  become 
part  of  an  aggregate  nation  of  people  1 

If,  by  the  revolution,  the  communities  called  provinces  became 
states,  how  did  they  lose  the  "  sovereignty  "  all  declared  each  to 
possess,  and  again  become  provinces  or  counties  ? 


CHAPTER  III. 

SOCIAL-COMPACT  FALLACIES. 

THE  EXPOUNDERS  ON  THE  SOCIAL  COMPACT. 

STORY,  Webster  and  Curtis  aim  to  show  that  the  people  of  all  the 
states,  by  a  second  social  compact,  formed  a  nation,  called  the 
"united  states" — an  absurdity  like  saying  that  thirteen  persons 
were  formed  into  a  person,  Called  the  united  persons.  Moreover,  the 
forming  of  such  nation  of  individuals  would  require  that  the  constitu- 
ents should  be  free  to  act.  This  could  not  be,  for  each  was  bound,  in 
political  matters,  to  be  governed  solely  by  the  body-politic  he  belonged 
to,  and  to  act  only  as  part  of  said  body.  Indeed,  his  political  authority 
was  confined  to  that  vote,  which  the  body  delegated  to  him,  to  be 
used  as  a  part  of  the  means  of  determining  her  will ;  and  he  actually 
exercised  this  privilege  by  voting  for  the  members  of  her  ratifying 
convention,  through  which  she  willed  to  adopt  the  federal  pact.  The 
formation  of  the  national  society  in  question  would  have  necessitated 
the  dissolving  of  the  state,  and  the  absolving  of  the  citizen  from  his 
obligations.  We  know  this  was  not  done,  because  the  states  are 
named  in  the  pact  as  "the  United  States;"  and  they  went,  with 
their  citizens,  into  the  union  unchanged.  And  no  citizens  are  recog- 
nized in  the  said  pact,  but  citizens  of  the  several  states. 

The  expounders  argue  that  the  state  constitutions  are  not  social 
compacts,  but  fundamental  laws.  [I.  Sto.  Com.  §  333  et  seq.~\  This 
is  entirely  true,  but  the  constituting  of  society  is  one  thing,  and  the 
constituting  of  government  another.  The  social  compact  is  the  law 
of  the  society's  or  state's  being,  whilst  the  constitution  must  be  the 
law  of  the  government's  being,  or,  in  other  words,  the  law  creating, 
directing,  and  controlling  the  government  of  the  said  society,  which  is 
the  pre-existent  and  law-making  body.  History  plainly  distinguishes 
the  law  of  being  of  the  community  from  the  law  of  being  of  the  gov- 
ernment ;  for  when  the  first  constitution  of  Massachusetts  —  that  of 
1780  —  was  formed,  she  had  been  a  perfect  community  —  a  body- 
politic,  for  many  generations,  requiring  nothing  but  independence  to 
make  her  a  sovereignty ;  and  when  Pennsylvania's  first  constitution 


SOCIAL-COMPACT  FALLACIES.  289 

was  formed,  in  1776,  she  had,  for  about  one  hundred  years,  been  a 
complete  body-politic,  governed  by  William  Penn  and  successors, 
under  the  sovereignty  of  the  British  crown,  merely  lacking  the  inde- 
pendence wrhich  the  war  consummated,  to  make  her  a  perfect,  sove- 
reign, and  uncontrollable  state.  First,  then,  we  have,  as  a  fact,  the 
complete  and  absolute  state  —  identical  with  its  members  —  they 
voluntarily  associated.  Essential  to  this  state  is  a  political  will. 
Second,  we  have,  as  a  fact,  the  government  —  state  or  federal  —  the 
creation  of  the  state's  will.  To  make  the  former  agency,  the  states 
acted  severally ;  to  make  the  latter,  federally.  The  constitution,  in 
either  case,  is  the  expression  of  the  will  of  sovereignty,  the  law  of 
being  of  the  government,  and  the  evidence  of  its  existence  and 
"  powers." 

A  Misstatement  exposed.  —  It  is,  then,  a  mere  subterfuge  of  the 
expounders,  to  assume  that  somebody  regards  the  constitution  as  a 
social  compact  [I.  Sto.  Com.  §  333],  and  proceed  to  show,  as  if  in 
refutation,  what  nobody  denies,  to  wit :  that  it  is  a  fundamental  law, 
and  not  a  social  compact.  On  this  point,  as  usual,  Massachusetts, 
their  own  cherishing  mother,  confounds  them,  as  I  shall  now  show, 
exposing,  at  the  same  time,  a  misquotation.  Story  says  [Ibid.]  that 
she  declares,  in  the  preamble  to  her  constitution,  that  "  government 
is  a  social  compact,  by  which  the  whole  people  covenants  with  each 
citizen,  and  each  citizen  with  the  whole  government." 

This  is  a  misquotation.  The  true  one  is  to  be  found  on  page  283, 
supra.  She  says  "  the  body-politic  is  formed  "  by  "  a  social  compact " 
—  not  that  "  government  is  a  social  compact ; "  and  she  states  the 
compact  to  be  by  "  each  citizen  with  the  whole  people  "  —  not  with 
the  "government."  He  seldom,  if  ever,  quotes  correctly,  or  argues 
fairly,, on  these  subjects. 

After  stating  the  compact,  the  body,  and  the  object  in  view,  she 
continues:  "It  is  the  duty  of  the  people  [i.e.  the  preformed  body], 
therefore,  in  framing  a  constitution  of  government,  to  provide  for" 
just  laws;  "for  an  impartial  interpretation  and  a  faithful  execution 
of  them."  Her  idea,  then,  was  that  the  preformed  body  was  to  estab- 
lish the  constitution  of  government.  [See  Const,  of  Mass.] 

Nay,  more,  both  she  and  Pennsylvania  declare  that  the  people  [i.  e. 
the  pre-existent  body -politic]  have  the  inherent  right  to  institute, 
amend,  or  abolish  government,  or  constitutions  of  government,  —  thus 
again  showing  the  social  compact  to  be  one  thing,  and  the  constitu- 
tion of  government  another.  And  they  never  dreamed  that  abolishing 
the  government  of  their  creation,  was  abolishing  society  or  abdicating 
self-government,  and  bringing  anarchy  and  chaos,  as  some  pretend  to 
think ;  for  they  were  conscious  of  being  republics,  formed  indepen- 

19 


290  SOVEREIGNTY  IN  THE  UNITED   STATES. 

dently  of,  and  remaining  above,  their  constitutions  of  government. 
They  were  themselves  the  real  government,  and  hence  there  could  be 
no  interregnum  resulting  from  a  change  of  mere  agencies.  Indeed, 
lightning  might  strike  and  destroy  either  federal  or  state  government, 
and  leave  the  state  herself  uninjured,  and  even  unjarred,  to  proceed, 
for  her  safety  and  welfare,  to  make  another.  In  fine,  the  two  ideas 
of  a  man,  and  his  self-control,  are  not  more  separate  than  the  two 
ideas  of  a  society,  and  its  self-go vernment. 

For  the  want  of  information,  and  clear  and  unprejudiced  thought,  on 
these  subjects,  in  1861,  many  clergymen  went  almost  wild.  Rev.  Dr. 
Breckinridge  said  :  "  Secession  is  a  proceeding  which  begins  by  tear- 
ing in  pieces  the  whole  fabric  of  government,  both  social  and  politi- 
cal." "  Its  very  design  is  ...  to  annihilate  the  institutions  of  the 
country,"  etc.  Rev.  Dr.  Hodge,  of  Princeton,  argued  similarly.  Rev. 
Dr.  Junkin  filled  a  considerable  book  with  such  matter,  and  properly 
called  it  "  Political  Fallacies,"  for  one  more  true  to  its  title  was  never 
published. 

Specimens  of  Expounding  on  this  Subject.  —  It  is  well  to  group 
here  two  or  three  of  the  extraordinary  expoundings  on  this  matter. 
It  is  fatal  to  the  "  school,"  that  the  original  republican  society  must 
exist  by  the  consent  of  the  members  to  be,  and  act,  as  a  society ;  and 
that  hence  the  states  must  be  independent  in  existence,  and  sovereign 
in  will  —  our  general  system  being  a  republic  of  republics,  or  federa- 
tion of  republican  states. 

Therefore,  they  pretend  to  explode  the  actual  social  compact,  and 
assert,  in  substance,  that  the  constitution  of  the  united  states  is  the 
constitution  of  a  state,  or  nation  of  people,  in  which  the  quondam 
states  have  become  subdivisions,  while  their  rights  and  powers  are 
reserved  to  them,  by  the  said  nation,  in  the  said  constitution.  They 
more  than  intimate  that  the  people  of  all  the  states,  "  in  the  aggre- 
gate," formed  a  second  social  compact,  doing  away  with  all  the 
original  ones,  and  making  themselves  one  state.1 

John  Quincy  Adams  goes  farther  back.  —  This,  in  substance,  is 
the  contention  of  Story,  Webster,  and  Curtis,  to  which  I  will  add  the 
surprising  statement  of  that  wiser  politician,  John  Quincy  Adams. 
Seeing  the  pre-existence  and  continuation  of  the  states  to  be  fatal  to 
the  national  theory,  he  concluded  to  have  them  strangled  at  their 
birth  by  the  infant  Hercules  of  American  nationality ;  so,  at  Boston, 

1  Mansfield,  in  his  Political  Grammar;  Brownson,  in  his  American  Republic;  Jame- 
son, in  his  Constitutional  Convention;  Draper,  in  his  Civil  War;  Greeley,  in  his  Ameri- 
can Conflict,  and  others  of  that  school  — all  seem  to  deny  that  the  original  communities 
or  republics  were  formed  by  social  compacts ;  and  affirm  that  the  nation  was  so  formed. 
Their  theories  are  remarkably  varied  and  inconsistent,  showing  the  want  of  facts.  But 
to  such  arguers  facts  are  trammels.  They  prefer  figments ! 


SOCIAL-COMPACT  FALLACIES.  291 

on  the  4th  of  July,  1831,  in  Fanenil  Hall,  he  discordantly  orated  as 
follows  :  "  The  Declaration  of  Independence  was  a  social  compact,  by 
which  the  whole  people  covenanted  with  each  citizen,  and  each  citizen 
with  the  whole  people,  that  the  united  colonies  were,  and  of  right 
ought  to  be,  free  and  independent  states." 

This  remarkable  assertion  is  entirely  unfounded.  The  instrument 
promulgates  great  general  principles;  and,  after  detailing  reasons 
therefor,  simply  declares  the  independence  of  the  states,  who,  in  con- 
gress, make  the  declaration. 

"  Hotchpotch."  —  I  will,  en  passant,  cite  without  comment,  and  as 
a  curiosity,  the  statement  on  this  subject  of  Professor  Jameson,  of  the 
University  of  Chicago,  in  his  "  Constitutional  Convention  "  (p.  29) : 
"The  people  of  the  United  States,  in  1789,  threw  the  existing  con- 
stitutions of  the  several  states  into  hotchpotch,  and  repartitioned 
among  those  bodies  the  powers  they  were  thenceforward  to  exercise, 
giving  a  portion  thereof  to  the  states,  a  portion  to  the  general  govern- 
ment, and  reserving  the  residue  to  themselves." 

Hume's  Explosion.  —  The  expounders,  determined  to  show  that 
the  people  were  lying  loose,  so  that  the  fathers  could,  in  1787,  herd 
or  aggregate  them  into  a  nation,  assert  that  Hume  exploded  the  social- 
compact  theory,  thus  depriving  our  states  of  their  law  of  being.  We 
have  already  seen  that  his  explosive  dynamics  did  not  blow  the  social- 
compact  idea  out  of  the  Massachusetts  organic  law,  and  we  will  now 
see  that  he  did  not  affect  our  precious  social  ties  at  all. 

In  his  Essay  No.  XII.,  written  in  1752,  after  exposing  the  fallacy 
of  various  European  theories  on  this  subject,  he  proceeds  to  say : 
"  My  intention  here  is  not  to  exclude  the  consent  of  the  people  from 
being  one  just  foundation  of  government.  It  is  surely  the  best  and 
most  sacred  of  any." 

Here,  then,  was  forecasted  by  that  great  man  the  very  law  of  repub- 
lican being,  the  vitality  and  cohesive  force  of  every  commonwealth,  — 
the  "  consent  or  will  of  the  persons  forming  it."  Indeed,  the  whole 
philosophy  of  the  republic  is  comprehended  in  that  one  sentence. 
Such,  too,  was  the  theory  of  Edmund  Burke. 

The  true  idea  of  the  Declaration  seems  to  have  passed  away  with 
the  fathers,  —  there  not  being  virtue  and  understanding  enough  in 
American  politicians  to  keep  it  alive.  The  consent,  which  was  de- 
clared to  be  the  only  just  foundation  to  government,  was  the  consent 
of  the  party  to  a  contract.  The  consent  of  the  people,  as  heretofore 
remarked,  means  the  will  of  the  people. 

Think  of  it !  "  Consent  of  the  governed  "  is  a  phrase  of  no  value, 
except  in  the  sense  I  mention.  Poland,  Venetia,  and  Ireland,  yielding 
to  tyranny,  consent.  All  slaves  consent.  Order  reigned  in  Warsaw 


292  SOVEREIGNTY  IN  THE  UNITED   STATES. 

because  of  consent.  And,  finally,  wherever  peace  has  been  made  by 
desolation,  the  trembling  wretches,  hid  in  caves,  were  willing  to  con- 
sent to  any  terms. 

No  !  no !  Messrs.  Politicians,  when  the  American  people,  as  they 
are  organized  and  capacitated  to  act,  do  absolutely  govern  themselves, 
both  domestically  and  federally,  then  will  be  restored  the  consent  of 
the  social  compact,  and  of  the  Declaration  of  Independence,  but  never 
before  ! 

The  State  rules  in  all  Things.  —  The  change,  by  independence,  from 
a  province  to  a  state,  was  necessarily  a  change  from  subordination  to 
supremacy.  Sovereignty  is  the  very  thing  that  distinguishes  a  state 
from  a  county  or  province.  We  have  found  that  Massachusetts  was 
formed  by  social  compact  of  her  people ;  that,  as  a  commonwealth, 
she  is  absolutely  sovereign,  and  that  her  citizens  are  completely  her 
subjects.  The  citizens,  then,  being  merged  in,  and  controlled  by,  the 
state,  could,  by  the  state  only,  be  subjected  to  the  federal  pact, 
government,  and  laws ;  and  he  obeys  these  solely  because  the  state 
commands  it. 

The  Germ  of  the  Republic.  —  It  is  evident,  then,  that  the  states 
of  America  reversed  the  monarchical  principle  of  indissoluble  allegiance, 
—  "  once  a  subject,  always  a  subject,"  —  and  established  the  one 
that  each  individual  could,  of  inherent  right,  migrate  and  establish 
new  social  relations  at  pleasure ;  and,  consequently,  that  his  obliga- 
tions to  the  community  rested  solely  on  his  voluntary  engagements. 
This  necessitates  the  social  compact,  and  shows  it  to  be  the  germinal 
idea  of  the  republic,  and  this  body  to  be  self-organized  and  self- 
governing.  And  it  is  further  evident  that  the  germ  of  political  free- 
dom is  in  the  member  of  the  society. 

The  Society  called  Pennsylvania.  —  We  see,  then,  that  Pennsyl- 
vania, composed  of  her  voluntarily  associated  members,  on  becoming 
free  from  England,  became  sovereign  herself,  and  that  afterwards,  with 
entire  individuality,  and  with  sovereignty  unabated,  she  federalized 
herself  in  the  present  union. 

The  Polity  is  Self-government  of  Societies.  —  Not  a  line  in  all 
American  history  even  hints  at  the  formation  of  any  other  societies, 
communities,  and  commonwealths  of  persons  than  states,  or  of  these 
bodies  having  any  limitation  whatever  on  their  capacity  or  power. 
These  states  were  organized  and  complete,  were  pre-existent  bodies, 
at  the  time  of  federation.  They  met  in  the  convention  of  1787, 
planned  the  federal  constitution  of  government,  and  by  their  respec- 
tive sovereign  wills  —  evidenced  by  their  respective  ordinances  of  ratifi- 
cation —  gave  to  it  all  the  life  and  power  it  ever  had  or  could  possibly 
have ;  and  they  put  it  in  operation  by  electing  and  sending  their  citi- 


SOCIAL-COMPACT  FALLACIES.  293 

zens  and  subjects  to  exercise,  as  "  substitutes  and  agents,"  the  powers 
they,  the  said  states,  delegated. 

Then,  as  each  state  made  her  home  government,  it  is  certain  that 
the  American  polity  was  the  government  of  states  by  themselves,  — 
jointly  in  general  affairs  and  severally  in  domestic  ones. 

And  it  must  strike  the  reader,  that  if  these  societies  are  still  prov- 
inces or  counties,  or  under  external  control  in  any  sense  or  particular, 
they  revolutionized  against  Britain  in  vain  !  If  their  only  status  and 
powers  are  (as  "  the  school,"  through  Lincoln,  assert)  fixed  by  the 
nation  in  its  constitution,  not  only  the  several  states  are  provincial- 
ized, but  "  the  united  states,"  the  very  association  declared  to  be  "  the 
government,"  are  subjected  to  the  nation,  and  are  under  the  arbitrary 
power  of  that  nation's  agency,  which,  according  to  Webster  and  Cur- 
tis, decides  finally  on  all  questions  as  to  its  own  power.  [See  pp.  160, 
202,  supra.']  Appeals  to  the  nation,  even  if  possible,  would  not  be 
prompt  and  practical.  It  has  no  will  and  no  capacity  for  action. 
Kemedy  should  be  right  at  the  heels  of  wrong,  especially  in  such 
matters  as  liberty  and  sovereignty.  Civitas  ea  in  libertate  est  posita, 
quce  suis  stat  viribus,  non  ex  alieno  arbitrio  pendet.1  [Livy.] 

"  That  state  alone  is  free  which  stands  upon  its  own  strength,  and  doe?  not  depend 
on  the  arbitrary  will  of  another." 


CHAPTEE  IV. 

SOCIETIES  ARE  SOVEREIGN. 

ALL  our  history  and  governmental  philosophy  teach,  as  we  have 
seen  :  — 

1.  That  republican  sovereignty  resides  in,  and  never  leaves,  the 
people. 

2.  That  "  the  consent  of  the  governed,"  referred  to  in  the  Declara- 
tion of  Independence,  as  the  only  just  basis  of  the  government,  is  the 
consent,  or  rather  will,  that  forms  society  and  institutes  government. 
The  people  consented,  or  rather  willed  into  being,  agencies,  both  for 
their  federal  and  their  state  affairs. 

3.  That  "  the  people  of  the  united  states  "  politically  exist  and  act 
only  as  commonwealths. 

4.  That,  as  commonwealths,  they  "  ratified,"  and  thereby  "  ordained 
and  established,"  the  constitution. 

5.  That  they  federally  associated,  in  the  character  of  sovereign 
commonwealths,  to  govern  themselves,  conjointly  in  general  affairs, 
i.  e.  to  act  as  a  union  of  republican  states,  or  a  "  republic  of  republics ; " 
while  each  continued  to  govern  herself  in  all  home  affairs. 

All  our  history  is  consistent  with  this  view,  especially  the  unani- 
mous declaration  of  opinion  of  the  convention  of  states  of  1787,  that 
"the  united  states  "  are  "the  government,"  and  that  the  name,  "the 
united  states,"  means  the  people  as  states,  and  not  the  people  as  a 
state  or  nation.  [V.  Ell.  Deb.  377,  382.] 

Now,  having  seen  precisely  where  sovereign  mind  or  will  is,  having, 
in  other  words,  seen  the  body  in  which  it  dwells,  and  the  exclusively 
functional  character  of  its  action^let  us  note  how  it  manifests  itself 
in  our  republican  government.  Look  at  the  necessary 

Grades  of  Authority.  —  All  people  agree  that  sovereignty  made 
the  constitution,  federal  as  well  as  state,  and  that  this  instrument 
provides  for,  directs,  and  controls  the  government,  which  in  turn  rules 
the  persons  and  things  subject  to  it,  *.  e.  the  people  and  their  belong- 


SOCIETIES  ARE   SOVEREIGN.  295 

ings.     To  illustrate,  I  will  draw  four  horizontal  lines,  to  represent  the 
different  grades  spoken  of :  — 

SOVEREIGNTY  — THE   PEOPLE. 

1  ___^^^^_^« ^—^^— -^— 

THE   CONSTITUTION. 

2  — — — — ^— i — ^— — — 


THE   GOVERNMENT. 

3  ' 


THE   PEOPLE   AS   SUBJECTS. 

4  m———^-m 


We  see  here  that  the  people  govern,  and  the  people  are  governed. 
This  necessitates,  in  each  republican  citizen,  two  capacities,  one  cor- 
porate and  political,  and  the  other  personal.  In  the  former,  he  is  a 
member  and  an  integral  part  of  society,  and  therefore  a  part  of  the 
governing  authority,  and  in  the  latter  he  is  a  subject.  It  is,  however, 
only  as  a  commonwealth  that  the  citizens  have  political  sovereignty, 
this  being  only  predicable  of  an  organized  community. 

An  amusing  Mistake.  —  Owing  to  ignorance  or  forgetfulness  of 
this  double  capacity  of  citizens,  our  modern  so-called  statesmen,  in 
their  expositions  of  the  constitution,  make  most  amusing  mistakes. 
Mr.  William  M.  Evarts,  in  defending  President  Johnson  against  im- 
peachment, in  1868,  thus  alludes  to  the  people:  "Masters  of  the 
country,  and  masters  of  every  agent  and  agency  in  it,  they  bow  to 
nothing  but  the  constitution."  By  not  heeding  the  above  distinction, 
he  makes  the  people,  in  their  governing  capacity,  bend  the  knee  to 
their  own  authority,  —  a  genuflexion  impossible  even  in  Utopia,  and 
the  very  one  alluded  to  by  Gov.  James  Sullivan,  of  Massachusetts,  as 
follows  :  "  You  may  as  well  attempt  to  erect  a  temple  beneath  its  own 
foundations  as  to  erect  a  government  with  coercive  power  over  itself." 
[Amory's  Life  of  Sullivan,  Vol.  I.  p.  231.]  Hon.  A.  H.  Stephens  makes 
the  same  error  in  his  "  War  between  the  States  "  [Vol.  I.  p.  40]  :  "  The 
exercise  of  supreme  law-making  power,  even  over  the  authority  dele- 
gating it,  may  be  legitimate,  so  long  as  the  delegated  power  is  unre- 
sumed."  This  simply  means  that  so  long  as  sovereignty  allows  its 
delegations  to  remain  in  its  created  agency,  it  is  subject  to  the  govern- 
ment and  coercion  of  that  agency.  By  parity  of  reasoning,  if  Mr. 
Stephens  were  to  give  his  son,  or  head-servant,  authority  over  his 
household  affairs,  it  could  be  used  to  command  him,  and  coerce  his 
obedience.  But  Mr.  Stephens  only  follows,  though  he  does  not  cite, 
illustrious  authority.  The  Supreme  Court  of  the  United  States,  in 
McCulloch  vs.  Maryland  [4  Wheaton,  316],  says:  "The  government 
of  the  union  is  a  government  of  the  people.  It  emanates  from  them, 
its  powers  are  granted  by  them,  and  are  to  be  exercised  directly  on 


296  SOVEREIGNTY  IN  THE   UNITED   STATES. 

them,  and  for  their  benefit."  Recently,  the  so-called  national  supreme 
court  have  made  the  error  more  flagrant  and  hurtful,  completing  the 
perversion,  as  follows  :  "  Citizens  are  members  of  the  political  com- 
munity to  which  they  belong.  They  are  the  people  who  compose  the 
community,  and  who,  in  their  associated  capacity,  have  established  or 

SUBMITTED     THEMSELVES     TO     THE     DOMINION    OF    A    GOVERNMENT,"    etc. 

In  other  words,  they  are  subject,  as  states,  and  as  united  states,  in 
the  same  degree  that  they  are  as  individual  men,  to  the  dominion, 
i.  e.  the  "  absolute  supremacy  "  of  the  government  they  established  ! 
Many  similar  quotations  might  be  given,  for  this  idea  is  very  common 
with  "  the  expounders  "  and  their  confiding  followers.  It  is,  indeed, 
an  essential  part  of  the  expounding  theory ;  and  it  is  a  mystery  how 
Mr.  Stephens,  who  is  really  on  the  opposite  side,  could  have  mixed 
such  an  error  with  his  truths.  The  advocates  of  this  theory  -dare  not 
reason  about  the  two  capacities  of  citizens,  for  it  suggests  two  lines 
of  thought,  both  of  which  lead  inevitably  to  the  body-politic,  in  which 
the  citizen  is  absolutely  merged,  and  in  which  sovereignty  must  dwell ; 
to  the  fact  that  the  state  is  the  only  such  body  ever  formed ;  and  to 
the  conviction  that  the  said  "expounders,"  in  promulgating  such 
theory,  intended  to  mislead,  or  did  not  understand  the  subject. 

The  People  govern  the  People.  —  They,  as  sovereign  society, 
govern  themselves  as  subjects.  Any  member  of  an  ordinary  corpora- 
tion who  can  think,  will  readily  see  the  two  capacities,  because  he  is 
a  constituent  or  integral  part  of  the  moral  or  jural  person,  which  the 
body  corporate  is,  while  he  is,  as  a  natural  person,  subject  to  whatever 
authority  the  corporation  has,  and  holds  no  right  whatever  to  the 
franchise  and  the  property  of  the  body ;  and  he  has  simply  a  right  to 
vote,  to  help  make  up  the  mind  and  express  the  will  of  the  said  cor- 
poration. So,  in  the  republic,  the  member  is  an  integral  part,  and 
holds  his  undivided  share  of  the  governing  power,  while  in  every  per- 
sonal act  he  is  a  subject,  even  voting  as  such  under,  and  by  virtue  of, 
the  commonwealth's  law,  to  help  express  the  will  of  the  body-politic, 
just  as  members  of  an  ordinary  body  corporate  do,  under  their  charter, 
to  reach  the  conclusum  universitatis. 

The  federal  constitution  itself,  as  I  have  shown,  recognizes  every 
person,  who  has  a  civil  or  political  status,  as  a  member  and  citizen  of  a 
state.  [Supra,  151.]  Hence,  I  divide  the  upper  line,  representing  the 
people,  i.e.  the  sovereignty,  into  thirteen  parts,  viz.  :  New  Hampshire, 
Massachusetts,  Rhode  Island,  Connecticut,  New  York,  New  Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Carolina,  South 
Carolina,  and  Georgia,  and  draw  a  line  from  each  to  the  constitution, 
to  indicate  the  impartation  of  life  and  validity  to  that  instrument. 
Then,  the  above  illustration  would  be  thus  modified  :  — 


SOCIETIES  ARE   SOVEREIGN. 


297 


THE   PEOPLE  AS  SOVEREIGN  COMMUNITIES. 


N'.  H. 

MASS. 

R.  I. 

CT. 

N.  y. 

N.  J. 

PA. 

DEL. 

MD. 

VA. 

N.C. 

S.  C. 

GA. 

THE 

CONS 

TITUT 

ION. 

THE   GOVERNMENT. 


THE   PEOPLE   AS  SUBJECTS. 


This  precisely  shows  the  system  contemplated.  The  republics  were 
to  remain  uppermost,  unconsolidated,  sovereign,  and  self-joined.  They 
themselves  were  to  govern,  and  the  institutions  of  government  were 
the  constitutions  of  so  many  agencies.  There  can  be  no  evasion  or 
denial  of  this  statement,  for  the  absolute  and  independent  act  of  each 
state's  will,  through  her  convention,  ratifying  and  establishing  the 
constitution,  as  to  herself  and  her  people,  is  shown  in  Part  II. ;  and 
these  independent  acts,  at  different  times  during  three  years,  are 
shown  to  be  the  only  acts  giving  existence  to  the  federal  system. 
The  system,  therefore,  is  to  be  treated  as  the  offspring  of  the  mind 
and  will  of  the  people,  whom  God  has  commissioned  to  govern  them- 
selves, and  is  to  be  regarded  as  the  most  sacred  of  earthly  things,  — 
the  very  ark  of  the  covenant ! 

The  People,  then,  are  subjected,  if  the  treasonable  theory  under 
notice  be  carried  out ;  and  the  fence  —  to  use  a  homely  but  expressive 
figure  —  must  be  reset,  according  to  the  formula  of  the  "school," 
according  to  the  notions  of  President  Lincoln,  and  according  to  the 
manifesto  of  the  Philadelphia  conclave  of  1866,  as  follows  :  — 

THE  CONSTITUTION. 


THE  GOVERNMENT.     (ABSOLUTE  SUPREMACY.) 


THE    iQUONJDAM   i  STATJES. 

N.  H. 

MASS. 

R.  I. 

CT. 

N.  Y. 

N.  J. 

PA. 

DEL. 

MD. 

VA.      N.  C.     S.  C.   |   GA. 

Not  a  word  in  history  favors  such  a  collocation  of  the  grades  of 
authority;  and,  as  the  states  individually  covered  the  whole  ground, 
and  collectively  devised,  and  afterwards  individually  ratified,  and 
thereby  "  ordained  and  established  "  the  constitution,  and  delegated 
powers  to  its  agency,  it  is  absolutely  impossible  that  a  nation,  or 
republic  composed  of  the  self-same  people,  should  have  done  the  same 
thing  at  the  same  time. 


298  SOVEREIGNTY  IN  THE   UNITED   STATES. 

Besides,  as  Webster  admits,  "sovereignty  in  government  is  un- 
known in  North  America."  The  real  government  is  the  republics, 
wherein  sovereignty  ever  dwells.  They  virtually  said  :  "  We  will 
unite  and  govern  our  subjects  as  if  a  nation,  in  a  certain  number  of 
respects ;  but  the  quasi  nation  is,  of  course,  the  offspring  of  our  sove- 
reign wills."  Just  as  they  did,  the  sovereigns  of  Europe  could  do, 
without  placing  the  agency  above  themselves,  or  making  an  indis- 
soluble union.  What  is  to  prevent  their  governing  their  aggregate 
people,  as  if  a  nation  1  Sovereignty  is  always  and  everywhere  of  the 
same  nature  and  supreme. 

Madison  is  conclusive  on  this  subject,  in  Number  39  of  the  Feder- 
alist. "Each  state,"  says  he,  ratines,  "as  a  sovereign  body,  inde- 
pendent of  all  others,  and  only  to  be  bound  by  its  own  voluntary 
act ; "  and  therefore  he  asserts  it  to  be  "  a  federal,  and  not  a  national 
constitution."  The  italics  are  his.  Furthermore,  after  dealing  with 
the  establishment,  the  parties,  and  the  powers  vested  by  the  states, 
he  says :  "  In  the  operation  of  these  powers,  it  is  national,  not  fed- 
eral." In  other  words,  as  to  these  powers,  the  states  govern  their 
subjects  as  if  B.  nation.  The  reader  who  desires  to  stand  on  truth 
and  common  sense,  should  study  Number  39  of  the  Federalist.  [See 
App.  D.]  Let  him  also  note  Madison's  statement  in  the  Virginia 
ratifying  convention,  that  this  is  "  a  government  of  a  federal  nature, 
consisting  of  many  coequal  sovereignties."  [III.  Ell.  Deb.  381.] 

All  publicists  speak  idem  sonans  on  this  subject.  Says  Vattel : 
"Several  sovereign  and  independent  states  may  unite  themselves 
together  by  a  perpetual  confederacy,  without  each,  in  particular,  ceas- 
ing to  be  a  perfect  state."  Their  "  deliberations  in  common,"  he  con- 
tinues, in  no  wise  abate  "the  sovereignty  of  each  member,"  though 
"  the  exercise  of  it "  may  be  diminished,  "  in  virtue  of  voluntary  en- 
gagements" Montesquieu,  Brougham,  De  Tocqueville,  and  Lieber 
speak  to  the  same  effect. 

The  Subjugation  of  the  Commonwealths,  above  depicted,  has 
been  wrought  by  their  members,  their  citizens,  their  subjects,  their 
"  substitutes  and  agents,"  —  "  bone  of  their  bone,  and  flesh  of  their 
flesh  ! "  These  traitors  say  that  "  the  government,"  meaning  them- 
selves, has  "  absolute  supremacy  "  over  people  and  states,  so  far  as  its 
powers  go,  it  being  itself  judge  of  how  far  that  is,  and  having  the  right 
to  preserve  itself;  that  the  states  are  counties,  with  no  status  or  rights, 
except  what  "the  nation  reserves  to  them  in  its  constitution." 

In  short,  they  say  precisely  what  the  above  illustration  does ;  and 
we,  the  victim-people,  are  reprovincialized,  while  all  the  fourth-of-July 
thunders  of  the  last  hundred  years  have  become  as  unmeaning  as 
they  were  harmless.  Britain  holds  provinces  mainly  for  commercial 


SOCIETIES  ARE   SOVEREIGN.  299 

advantages.  She  wants  these,  without  much  of  the  burden  of  gov- 
ernment and  protection.  She  has  precisely  the  politico-commercial 
arrangement  she  wants,  while  we  —  happy  people  !  —  have  the  glory 
of  a  corporate,  in  exchange  for  a  personal,  king ! 

"  National  Sovereignty  "  no  better.  —  The  perverters  gain  nothing 
by  saying,  "  We  mean  national,  instead  of  governmental,  supremacy," 
because  no  power  or  means  was  ever  provided,  or  contemplated,  for 
its  enforcement  over  states,  by  coercion  of  any  kind ;  while  not  only 
was  such  coercion  intentionally  kept  out  of  the  system,  but  was 
severely  reprobated,  and  most  carefully  guarded  against,  as  will  be 
seen.  The  fathers  strongly  condemned  this  very  idea  of  coercing 
states,  whenever  it  was  presented,  especially  in  the  convention  of 
1787,  as  well  as  in  the  several  ratifying  conventions,  and  carefully 
excluded  it  from  the  constitution.  [See  Part  III.,  Ch.  VII.]  More- 
over, fearing  its  possible  rise  from  implication,  they  counselled  and 
induced  the  states  to  adopt  Amendments  IX.,  X.,  and  XL,  to  forefend 
the  danger.  But  this  important  matter  will  be  distinctly  treated,  for 
it  involves  absolute  and  independent  proof  of  the  sovereignty  of  the 
states  in  the  union,  while  as  a  crucial  argument,  testing,  as  it  were, 
previous  ones,  it  will  be  found  invincible. 

Though  the  above  theory  of  the  expounders  is  testified  to  by  a 
"  cloud  of  witnesses,"  namely,  all  American  politicians,  yet  any  child, 
of  larger  or  smaller  growth,  will  see,  by  looking  thoughtfully  at  the 
above  illustration,  and  what  the  four  lines  symbolize,  that  it  is  as 
impossible  for  government  to  get  above  and  control  sovereignty  as  it 
is  for  Mr.  Stephens  to  carry  himself,  a  girl  baby  to  be  its  own  mother, 
or  a  bottom-rail,  ex  proprio  vigore,  to  get  on  top.  The  simplest  mind 
can  readily  see  that  it  was,  with  the  fathers,  an  accepted  principle  that 
the  states  are  not  subjects  of  government,  but  are  themselves  the  gov- 
ernment, —  being  republics  or  self-governing  peoples,  acting  through 
representatives,  i.  e.  "  substitutes  and  agents,"  and  that  this  was  why 
they  kept  coercion  of  states  out  of  the  constitution.  And  such  mind, 
even  with  cursory  reading,  must  see  that  Washington,  Hamilton, 
Madison,  and  all  the  rest  of  the  fathers,  considered  "  THE  PEOPLE  ot 
the  united  states,"  as  organized,  as  the  top  rail  (to  repeat  the  striking 
figure),  the  constitution  as  the  second,  the  government  as  the  third, 
and  the  people  and  their  belongings  as  the  bottom  one,  and  must, 
therefore,  despise  the  statement  that  "  the  government "  has,  in  any 
sense,  or  over  anything  whatever,  "  absolute  supremacy,"  as  was  as- 
serted by  the  Philadelphia  convention  of  1866.  Nay,  more,  such 
mind  will  insist  on  "  the  expounders  "  proving  the  when  and  the  how 
of  the  change,  from  the  admitted  voluntariness  of  the  "  union  of  states," 
to  the  present  alleged  involuntariness  thereof ! 


300  SOVEREIGNTY  IN  THE   UNITED   STATES. 

"The  Government"  claims  to  be  Paramount.  —  To  realize  the 
enslavement  of  the  states  by  the  corporate  despotism,  read  the  follow- 
ing from  the  Philadelphia  convention's  address  of  1866,  in  the  light 
of  Lincoln's  views,  the  legislation  of  the  last  fifteen  years,  and  the 
recent  dicta  of  the  federal  supreme  court,  to  be  presently  quoted  :  "  In 
two  most  important  particulars,  the  victory  achieved  by  the  national 
government  has  been  final  and  decisive.  First,  it  has  established 
beyond  all  further  controversy,  and  by  the  highest  of  all  human  sanc- 
tions, the  absolute  supremacy  of  the  national  government,  as  defined, 
etc.,  and  the  permanent  integrity  and  indissolubility  of  the  federal 
union,"  etc. 

Furthermore,  not  only  have  the  congress  and  the  President,  without 
the  warrant  of  the  constitution,  or  even  of  the  amendments,  old  or 
new,  claimed  supremacy  over  the  states,  single  or  united,  but  the 
federal  supreme  court,  the  last  hope  of  state  defence,  decides  that  the 
government  is  "  a  government  of  the  states  in  their  political  capacity," 
"  is  supreme  and  above  the  states  "  to  the  extent  of  its  powers,  that  ex- 
tent, according  to  all  these  perverters,  to  be  determined  finally  by  the 
Government  itself.  [United  States  vs.  Cruikshank,  1876.] 

The  Preamble  and  Article  VII.,  with  the  ellipses  filled  according 
to  fact,  would  be  as  follows :  "  We,  the  people  of  the  united  states 
[as  socially  organized  and  capacitated  to  act,  each  state  exercising  her 
sovereignty],  in  order  to  form  a  more  perfect  union  [of  such  states 
than  the  previous  one],  establish  justice,  insure  domestic  tranquillity, 
provide  for  the  common  defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  do  ordain 
and  establish  this  constitution  for  the  [said]  united  states  of  America." 
Article  VII.  is  consonant.  "The  ratification  of  the  conventions  of 
nine  [of  the  thirteen]  STATES  shall  be  sufficient  for  the  ESTABLISHMENT 
of  this  constitution,  between  the  STATES  so  [i.  e.  by  conventions]  rati- 
fying the  same." 

Societies  of  People  unquestionably  ratify,  and  thereby  "  ordain 
and  establish  "  the  constitution  ;  and  hence,  before  the  supreme  sove- 
reignty of  the  people,  as  commonwealths,  the  fasces  must  always  be 
lowered.  It  is  as  true  as  Heaven  or  Deity,  that  these  states,  of  their 
own  volition,  federalized  themselves.  It  is  equally  true  that,  as  the 
states  voluntarily  bonnd  themselves  as  united  states,  so  bound  must 
they  remain,  if  they  be  republics,  free  states,  self-governing  people. 
How  is  it  that,  in  1788,  these  states  were  in  the  top  grade  of  author- 
ity, when  1861  found  them  in  the  third  1  What  words,  figures,  or 
meanings  of  the  constitution  were  changed  between  the  two  epochs  ? 

Experimentum  Crucis.  —  The  truth  of  the  above  collocation  of 
grades  can  be  strikingly  and  decisively  proved  to  the  simplest  mind 


SOCIETIES  ARE  SOVEREIGN. 


301 


by  an  experiment  —  a  crucial  one.  Let  him  trace  the  authority  of  a 
sheriff,  or  United  States  marshal,  through  all  the  links  up  to  the 
original  source,  keeping  it  in  mind  that  at  or  before  the  adoption  of 
the  state,  or  the  federal,  constitution,  the  people  were  never  organized 
except  as  states,  and  had  no  capacity  whatever  for  political  action, 
except  as  such.  The  said  state  (i.  e.  the  collective  people)  investi- 
gates, reasons,  judges,  and  wills  through  a  convention.  This,  by  vote, 
determines  and  speaks  her  will,  as  an  independent  political  unit. 
Thus,  a  convention  adopted  a  federal  constitution  for  a  given  state, 
and  a  convention  adopted  the  state  one.  Hence,  the  chain  in  the  two 
cases  will  appear  pictorially  as  follows  :  — 


1.   THE   STATE. 


2.   THE  CONVENTION. 
!.  THE   STATE   CONSIGN. 
.    THE   LEGISLATURE. 
THE   STATUTE. 
THE   SHERIFF. 


2.  THE  CONVENTION. 
3.  THE  FED.  CONST'N 
4.  THE  CONGRESS. 

5.   THE   STATUTE. 
6.   THE   MARSHAL. 


To  establish  their  respective  state  constitutions,  the  states  acted 
separately.  To  establish  the  federal  one,  they  acted  independently  in 
power,  time,  and  place,  but  conjoining  their  wills  in  the  ordaining  of 
it.  The  last  has  no  other  life  and  power  than  that  derived  from  the 
states.  History,  by  showing  this,  proves  the  system  to  be  a  federation 
of  sovereignties. 

If  we,  in  the  above  mode,  start  from  any  federal  institution  or 
functionary,  and  go  up  through  the  chain  of  actual  and  historical  im- 
partations  of  power  to  the  source  of  all  authority,  we  shall  inevitably 
reach  the  self-organized  and  self-governing  commonwealths  of  people. 
Look  at  that  stupendous  enginery  of  power,  the  army  and  navy,  for 
instance.  They  are  controlled  by  their  officers,  and  these  by  the 
commander-in-chief.  Is  he  sovereign  ?  No ;  he  and  they  are  alike 
under  a  law,  hired,  told  what  to  do,  and  paid  wages.  Is  "  the  govern- 
ment," the  legislative  part  of  which  made  the  law,  sovereign1?  No; 
the  congress  and  president,  as  well  as  the  judiciary,  are  provided  for 
and  authorized  in  the  constitution,  and  are  engaged,  as  persons,  for 


302  SOVEREIGNTY  IN  THE  UNITED   STATES. 

service,  at  stated  wages,  told  what  to  do,  and  paid  for  their  work.  Is 
it  the  constitution,  then,  that  is  sovereign  1  No ;  this  is  a  funda- 
mental law,  ordained  by  conventions.  Are  (or  were)  these  sovereigns  1 
No ;  they  were  mere  delegative  bodies,  acting  for  the  people,  i.  e.  the 
states,  —  the  said  people  being  only  organized  and  capacitated  to  act 
as  states.  As  such,  they  exercised  their  wills  upon  a  plan  or  system 
they  themselves  had  had  prepared,  and  ordained  and  established  the 
same,  as  their  federal  (or  league-al)  constitution.  Such  wills  existed 
and  operated  within  them,  and  survived  the  act  of  establishment,  to 
watch  the  workings  of  the  system,  and  amend  (according  to  the  pact) 
or  abolish,  as  might  be  deemed  necessary.  Each,  according  to  its 
nature,  must  act  for  itself.  It  cannot  bind  itself  not  to  act,  —  cannot, 
indeed,  relinquish  the  right  of  reversing  its  will,  and  dissolving  its 
self-imposed  tie. 

Complete  Corroborations.  —  Whenever  the  above  test  is  applied, 
the  states  themselves  will  appear  as  the  real  sovereignty  and  govern- 
ment of  the  country.  They  must  be  the  government,  because  they  are 
republics,  that  is,  self-governing  bodies  of  people.  And  the  federal  pact 
entirely  corroborates  this  view,  by  calling  the  system  "  the  united  [i.  e. 
associated]  states,"  and  the  agency  of  it,  "  the  government  of  [i.  e.  be- 
longing to]  the  united  states,"  to  say  nothing  of  the  fact  heretofore 
mentioned,  that  the  convention  of  1787  unanimously  declared  that  the 
government,  under  the  constitution,  was  to  be,  and  to  be  styled,  "  the 
united  states"  [Supra,  201.] 

The  government,  then,  is  states,  —  "  the  united  states,"  —  and  the 
institution  at  Washington  necessarily  an  agency  or  joint-commission. 
The  right  of  this  thing  to  be,  and  act,  was  "  written  by  the  mighty 
hand  of  the  people  "  [federal  supreme  judge,  Patterson],  and,  if  it 
swerve  one  hair  from  its  authorizations,  the  mighty  foot  of  the  people 
should  crush  it ! 

Again,  as  above  shown,  the  constitution  and  Amendment  X.  prove 
that  there  are  no  powers  out  of  the  people  but  delegated  ones ;  so 
that  the  whole  government  must  be  acting  with  "POWERS,"  not  its 
own,  but  belonging  to  superior  authority,  —  i.  e.  the  people,  —  whether 
as  a  nation  or  as  states. 

1  What  is  a  "power"  ?  In  a  procuration,  a  commission,  a  compact,  a  deed,  a  con- 
stitution, a  will,  a  lease,  or  any  other  instrument,  it  is  an  "  authority,  which  enables  one 
person  to  do  an  act  for  another."  [See  Bun-ill's  Law  Die. ;  Sugden  on  Powers ;  Kent's 
Com.]  The  only  valid  acts,  then,  of  "  the  government "  consist  in  using  the  powers  of 
and  ACTING  FOR,  the  superior  authority  it  represents,  i.  e.  the  people. 

The  first  federal  chief  justice,  John  Jay,  not  only  recognized  that  the  delegations  of 
power  were  made  by  the  state  to  the  united  states,  and  not  to  the  government,  but  he 
declared  that  this  joint-agency  received  "that  part  of  the  people's  business  "  intrusted 
to  them,  "  not  for  themselves,  but  as  the  AGENTS  and  overseers  for  the  people."  These 
are  his  very  words.  [See  his  address  to  the  people  of  N.  Y.,  I.  Ell.  Deb.  496.] 


SOCIETIES  ARE   SOVEREIGN.  303 

Again,  the  persons  who  compose  "  the  government "  are  members 
and  citizens  of  the  separate  states,  who  emerge  from  them  to  serve  as 
their  agents  during  a  term,  or  good  behavior,  and  then  are  lost,  as  drops 
in  the  sea.  And  it  is  these  ephemera  —  "  insects  of  the  hour  "  —  who 
claim  absolute  supremacy  over,  and  the  allegiance  of,  the  very  com- 
monwealths that  breathed  them  into  being !  It  is  these  creatures 
that  claim  the  right  to  draw  from  their  sovereigns  and  creators,  the 
men  and  means  to  subjugate  them  with.  It  is  they  who  claim  the 
sovereign  and  final  right  to  decide  the  extent  of  their  own  powers, 
and  the  right,  in  cases  of  necessity,  of  which  they  are  to  judge,  to 
exercise  all  the  powers  outside  of  the  constitution. 

A  fit  Summing  up  hereof,  by  James  Wilson. — This  government,  by 
the  commonwealths,  of  their  people,  is  our  polity,  which  "the  school" 
have  long  tried  to  conceal.  James  Wilson,  one  of  the  profoundest 
statesmen  and  jurists  of  the  era  of  the  constitution,  presented  the 
grades  I  have  indicated  as  follows  [II.  Ell.  Deb.  432]  :  "  To  control 
the  power  and  conduct  of  the  legislature,  by  an  overruling  constitu- 
tion, was  an  improvement  in  the  science  and  practice  of  government, 
reserved  to  the  American  states.  Perhaps  some  politician,  who  has 
not  considered  with  sufficient  accuracy  our  political  systems,  would 
answer,  that  in  our  governments  the  supreme  power  was  vested 
in  the  constitutions.  This  opinion  approaches  a  step  nearer  the 
truth,  but  does  not  reach  it.  The  supreme,  absolute,  and  uncon- 
trollable power  remains  in  the  people.  As  our  constitutions  are  supe- 
rior to  our  legislatures,  so  the  people  are  superior  to  our  constitutions. 
Indeed,  the  superiority,  in  this  last  instance,  is  much  greater,  for 
the  people  possess,  over  our  constitutions,  control  in  act,  as  well  as 
right. 

"  The  consequence  is,  that  the  people  may  change  the  constitutions 
whenever  and  however  they  please.  This  is  a  right  of  which  no  posi- 
tive institution  can  ever  deprive  them.  To  the  operation  of  these 
truths  we  are  to  ascribe  the  scene,  hitherto  unparalleled,  which 
America  now  exhibits  to  the  world,  —  a  gentle,  a  peaceful,  a  volun- 
tary, and  a  deliberate  transition  from  one  constitution  of  government 
to  another.  .  .  .  Oft  have  I  marked,  with  silent  pleasure  and  admira- 
tion, the  force  and  prevalence,  through  the  united  states,  of  the  prin- 
ciple, that  the  supreme  power,  resides  in  the  people,  and  that  they 
never  part  with  it." 

He  referred  alone  to  the  people  as  commonwealths,  and  character- 
ized them  as  "  thirteen  independent  SOVEREIGNTIES,"  in  his  great  speech 
of  October  6,  1787,  — the  first,  most  conspicuous,  and  most  impor- 
tant speech  that  was  made  in  advocacy  of  the  federal  system,  after  its 
promulgation  on  the  17th  of  the  previous  month.  [See  Am.  Mus., 


304 


SOVEREIGNTY  IN  THE  UNITED   STATES. 


Vol.  I. ;  Mass.  Cent.,  Oct.  24, 1787.]  His  fundamental  idea  ever  was, 
that  the  sovereign  "  power  is  in  the  people  before  they  make  a  consti- 
tution, and  remains  in  them  after  it  is  made."  [See  Part  II.  Ch.  VI., 
passim.^ 

We  have  presented  to  us,  then,  by  this  great  constitutionist  — 
and  all  the  leading  fathers  were  consistent  with  him  —  precisely  the 
grades  of  authority  I  have  set  forth  :  — 

1.  The  people,  as  sovereign  states. 

2.  Their  federal  constitution. 

3.  The  government  provided  for  in  it. 

4.  The  people  as  subjects,  and  their  belongings. 


CHAPTER  V, 

SOVEREIGNTY  ONE  AND  INDIVISIBLE. 

WHATEVER  was  done  in  establishing  the  constitution  of  gov- 
ernment must  have  been  done  by  sovereignty.  Of  course,  I 
speak  of  voluntary  action,  i.  e.  free  exercise  and  effectuation  of  will. 
So  that,  if  any  sovereignty  was  put  in  the  federal  pact,  sovereignty 
must,  ex  mero  motu,  have  divided  itself.  It  must  have  exerted  its 
will,  whether  it  intended  to  divide  itself  or  delegate  powers.  When 
this  will  was  exerted,  the  constitution  was  made  and  established,  and 
the  said  will  necessarily  existed  through  the  act.  We  know,  then,  that 
it  was  not  sovereignty,  but  something  else,  that  was  put,  by  sovereignty, 
in  the  federal  pact.  The  instrument  itself  says  it  was  "  powers,"  and 
that  they  were  "  delegated."  "  Powers,"  then,  were  transferred,  while 
the  will  that  did  it  remained  untransferred,  in  the  moral  person  or 
persons  that  acted.  We  know  it  did  thus  remain,  for  it  was  exercised 
by  each  state  on  the  proposed  amendments,  several  years  afterwards. 
Here,  then,  we  have  absolute  proof  that  there  is  no  sovereignty  in  the 
constitution,  and  that  sovereignty  is  out  of  it,  and  in  the  states  who  ratified 
and  ordained  it. 

Imagine  Kaiser  William's  Authority  divided.  —  According  to 
philosophy  and  common  sense,  the  essential  idea  of  the  superlative 
word  "  sovereignty  "  is  of  a  will  that. rules  over  everything  in  its  ter- 
ritory ;  and  this  will  presupposes  all  the  other  attributes  of  a  perfect 
mental  unity,  through  which  those  conclusions  of  judgment  shall  be 
made,  and  those  determinations  of  will  reached,  which  are  indispensa- 
ble in  government.  Through  just  such  a  mental  unity,  William  of 
Prussia  commands  every  person  and  thing  in  his  kingdom.  His  right 
of  command  must  be  a  unity ;  and  to  think  of  what  can  be  maintained, 
in  defiance  of  his  will  in  his  own  realm,  is  to  think  of  what  does  not 
divide,  but  destroys  sovereignty ;  for  even  if  the  cap  of  Gesler  can  be 
kept  in  the  market-place,  as  an  emblem,  against  his  will,  he  is  not 
sovereign,  for  an  opposing  will  has  risen  above  his  own,  with  all  infini- 

20 


306  SOVEREIGNTY  IN  THE   UNITED   STATES. 

tude  to  expand  in,  for  domination  over  what  is  beneath.  The  sove- 
reign entity,  i.  e.  the  mind  or  soul  having  the  right  of  command, 
is  the  same  (with  its  perception,  reason,  judgment,  and  will)  in  an 
aristocracy,  and  a  republic,  as  in  a  monarchy. 

What  say  the  Publicists  ?  —  As  they  all  agree,  one  or  two  quota- 
tions from  those  of  the  highest  repute  will  suffice.  Vattel  says  [Book  I., 
§  65]  :  "  Every  sovereignty,  properly  so  called,  is,  in  its  own  nature, 
one  and  indivisible."  Lieber,  in  his  "  Civil  Liberty  and  Self-govern- 
ment "  [Ch.  XIV.],  says:  "What,  in  a  philosophical  sense,  can  truly 
be  called  sovereignty  can  never  be  divided."  In  his  "  Political 
Ethics"  [§  63],  he  says :  "Society  can  never  delegate  or  pledge  away 
sovereignty ; "  and  that  "  being  inherent  naturally  and  necessarily 
in  the  state,  it  can  never  pass  away  from  it  so  long  as  the  latter  ex- 
ists." See  also  Montesquieu,  Locke,  Puffendorf,  Burlamaqui,  Ruther- 
forth,  Rousseau,  and  others. 

Enough  is  now  said  and  quoted  to  exhibit  the  mental  unity,  the 
moral  person,  which  dwells  in  one  of  our  societies  or  states,  as  its  soul, 
this  being  sovereign,  and  acting  so  continually,  through  the  mental 
organism  and  faculties  already  brought  to  view. 

Any  thinking  man  can  see  that  sovereignty's  exercise  of  its  right  of 
government  is  functional,  and  involves  no  change  of  itself,  in  place, 
nature,  or  right,  much  less  does  it  divide  and  conquer  itself,  commit- 
ting felo  de  se.  The  British  sovereignty,  the  Queen  and  Parliament, 
remains  at  home,  in  its  institutional  body,  while  its  governmental 
agents  and  agencies  go  all  over  the  world,  bearing  and  executing 
"powers."  Sovereignty  is  ever  with  and  in  the  Czar  of  Russia,  while 
his  agents,  with  "powers,"  govern  throughout  the  empire.  That  of 
Prussia  went  to  oversee  the  pounding  of  France  with  Thor's  hammer. 
But,  though  its  presence  may  have  increased  directing  intellect  and 
moral  force,  it  made  the  shot  and  steel  no  more  deadly.  While  one 
set  of  sovereignty's  agents  were  using  its  "  powers  "  to  kill  and  con- 
quer abroad,  another  set  were  using  its  "powers  "  to  govern  at  home. 
Of  course,  republican  sovereignty  must  act  in  the  same  way,  through 
"powers  "  given  to  agents  to  be  executed  by  them.  Said  Chancellor 
Pendleton  :  "  The  people  are  the  fountain  of  all  power.  They  must, 
however,  delegate  it  to  agents,  because  .  .  .  they  cannot  exercise  it  in 
person."  [III.  Ell.  Deb.  298.] 

Rights  and  Powers  are  not  Sovereignty.  —  All  difficulties  would 
disappear  from  this  subject,  if  we  would  discard  the  idea  that  sove- 
reignty is  composed  of,  or  can  be  divided  into,  rights  and  powers. 

The  general  notion  of  the  expounders  seems  to  be,  that  sovereignty 
is  the  sum  of  all  rights  and  powers,  —  "  the  embodiment  of  all  pow- 
ers," to  use  Mr.  A.  H.  Stephens's  expression.  They  (and  he,  too,  un- 


SOVEREIGNTY  ONE  AND  INDIVISIBLE.  307 

fortunately)  confound  it  with  the  powers  which,  by  delegation  and 
in  writing,  it  entrusts  to  the  governmental  agency  it  creates.  They 
admit  the  transfer  to  be  by  delegation,  but  say  this  is  a  ceding  of  a 
part  of  sovereignty,  and  irrevocable.  Witness  the  absurdity.  The 
people  cannot  govern  directly  :  they  can  do  it  only  by  and  through 
this  very  process  of  delegation.  Now,  supposing  all  their  governing 
powers,  federal  or  state,  to  be  in  exercise,  the  result  of  such  theory 
would  be  as  follows  :  If  they  put  one-third  of  them  in  the  federal  con- 
stitution, one-third  of  their  governing  power  is  "  irrevocably  "  gone. 
The  residue  of  two-thirds  being  vested  in  the  state  governments,  by 
precisely  the  same  process,  through  state  conventions,  the  people  have 
abdicated  all  of  sovereignty,  put  an  end  to  the  republican  form  of 
government  (which  can  only  exist  where  they  keep  the  sovereignty 
and  govern  absolutely  at  all  times  and  in  all  things),  and  reduced 
themselves  to  allegiant  subjects  of  agencies,  which  they  themselves 
created  and  empowered,  —  the  federal  one  being  paramount,  impe- 
rial! 

The  effectuation  of  this  theory,  then,  is  the  annihilation  of  sove- 
reignty. This  is  the  reductio  ad  absurdnm  ;  for  sovereignty,  whether 
it  is  that  of  a  nation  or  of  states,  must  always  be  supreme  over  every 
person  and  thing ;  and,  as  long  as  the  republic  lasts,  it  must  remain 
in  the  people  as  organized,  they  choosing  to  politically  exist  as  states, 
and  to  govern  themselves  as  such,  —  separately  as  to  domestic  affairs, 
and  conjointly  in  general  and  common  ones.  This  is  the  view  of  all 
the  fathers. 

Sovereignty  is  not  Qualifiable  or  Limitable.  —  The  dogma  that 
the  states  have  sovereignty,  except  so  far  as  they  have  ceded  it,  if  not 
intended  as  a  deception,  is  a  gross  and  deplorable  blunder ;  and  the 
following  expressions,  to  be  found  in  the  speeches  and  writings  of  all 
American  politicians  of  note,  are  both  amazing  and  amusing  for  their 
solecistic  absurdity  :  "  Divided  sovereignty,"  "  delegated  sovereignty," 
"qualified  sovereignty,"  "limited  sovereignty,"  "representative  sove- 
reignty," "federal  sovereignty,"  "sovereign  powers  vested  in  the  gov- 
ernment," "surrendering  essential  parts  of  sovereignty,"  "dividing 
sovereignty  between  the  federal  and  state  governments,"  "  the  states 
are  sovereign,  except  so  far  as  they  have  delegated  specific  sovereign 
powers  "  [Webster],  "  each  state  is  absolutely  sovereign,  except  as  to 
the  limited  supreme  sovereignty  conferred  upon  the  national  govern- 
ment "  [Story] ;  and  so  on,  through  an  immense  number  and  variety 
of  expressions,  all  absurdly  coupling  sovereignty  with  some  qualifying 
word  or  phrase,  or  treating  of  it  as  susceptible  of  infinite  division,  in 
contempt  of  the  great  philologists  of  the  age,  who  all  unite  in  con- 
sidering the  word  superlative  in  signification,  and  the  entity  referred 


308  SOVEREIGNTY  IN  THE   UNITED   STATES. 

to  as  indivisible  and  inalienable.  [See  also  the  opinions  of  Judges 
Taney  and  McLean,  5  How.  588;  21  How.  516.] 

We  shall  soon  see  that  sovereignty  is  indivisible,  and  is  not  com- 
posed of,  or  identical  with,  rights  or  powers.  Society's  sovereignty 
must  be  its  supreme  will  over,  and,  so  to  speak,  ownership  of,  all  per- 
sons and  things  that  are  put  therein.  Like  ownership,  it  involves  the 
right  of  control  arid  command,  as  well  as,  to  a  certain  extent,  the  jus 
disponendi.  Will  must  be  exercised,  and  must  have  its  mental  ad- 
juncts,—  perception,  reason,  and  judgment.  Can  this  mental  unity 
be  disintegrated,  so  that  a  part  of  the  faculties  can  be  alienated,  and 
the  rest  retained  ?  Can  the  subject  persons  and  things  be  partitioned, 
so  that  some  can  be  under  one  supreme  will  and  some  under  another  ? 
Can  a  citizen  yield  his  obedience  to  more  than  one  ultimate  authority  1 
Common  sense  answers  these  questions  negatively.  Two  sovereigns 
cannot  have  the  same  subject.  No  man  can  serve  two  masters.  But 
one  paramount  authority  can  exist  in  any  country.  In  a  republic, 
this  must  reside  in  the  state.  It  does  so  in  the  united  states.  New 
York,  Texas,  or  Illinois  is,  of  right,  as  absolute  as  King  William  or 
the  Grand  Turk. 

Only  one  Sovereignty  over  all  Persons  and  Things.  —  To  illus- 
trate this,  let  us  first  draw  a  line  from  A  to  B,  to  present  the  domain 
on  which  sovereignty  is  to  act,  say  the  area  of  a  state  :  let  C  repre- 
sent the  national  government,  and  D  the  state  one.  Assuming  each  to 
have  sovereignty  (I  do  not  mean  mere  government,  but  the  original  and 
absolute  right  of  government,  —  the  "  all-power,"  which  carries  right  of 
coercion)  over  the  same  territory,  as  the  following  figure  indicates ; 
inasmuch  as  they  are  human,  A  to  B  must  be  a  debatable  ground, 
must  comprise  many  points  of  controversy,  and  must,  finally,  become 
"  a  field  of  blood." 


Our  fathers  were  guilty  of  no  such  folly.  They  always  considered 
the  people,  and  not  the  governments,  as  sovereign.  They,  like  Daniel 
Webster,  said  :  "  Sovereignty  in  government  is  unknown  in  North 
America."  Hence,  the  diagram  is  reproduced,  and  extended  as  fol- 


SOVEREIGNTY  ONE  AND  INDIVISIBLE. 


309 


lows,  E  representing  the  people,  i.  e.  the  sovereignty,  the  source  of 
all  government,  and  C  and  D  its  governing  agencies  :  — 

E 


Between  the  two  governments,  there  can  be  no  conflict  that  requires 
the  ultima  ratio  to  settle  the  question  of  sovereignty,  for  they  are  both 
subordinate  agents  of  the  people,  who  themselves  have  the  jura  summi 
imperil  [Blackstone]  in  their  respective  political  organizations.  Each 
is  employed  and  paid  to  exercise  its  agency  over  the  whole  state,  just 
as  two  servants  might  be  set  at  work  in  the  same  field ;  and  the  said 
sovereignty  can,  as  to  both  agencies,  assign  duties,  control,  and  prevent 
conflicts.  This  was  the  view  of  the  fathers.  For  example,  Madison 
said,  no  one  dissenting,  that  "the  federal  and  state  governments  are, 
in  fact,  but  different  agents  and  trustees  of  the  people,  instituted  with 
different  powers  "  [Fed.  46],  the  said  people  "  composing  thirteen  in- 
dependent sovereignties,"  and  making  the  constitution  in  such  sove- 
reign capacities.  [39  and  40  Fed. ;  III.  Ell.  Deb.  94.]  Chancellor 
Pendleton  and  Judge  Marshall,  in  the  Virginia  convention,  explained 
in  the  same  way ;  so  did  Chancellor  Livingston  and  Alexander  Ham- 
ilton, in  New  York.  [Supra,  93,  107,  108.]  Both  constitutions  of 
government  were  considered  part  of  the  fundamental  law  of  a  com- 
monwealth, and  the  two  were  characterized  as  "a  great  political 
machine."  [Read  extract  from  No.  46  Fed.,  App.  D.] 

Sovereignty,  then,  cannot  divide  itself.  Nothing  can  be  excepted 
from  its  jurisdiction.  And,  especially,  it  cannot  become  subject  to 
the  coercive  authority  of  its  own  delegations ;  and  it  is  only  enemies 
or  perverters  that  could  pretend  that  the  commonwealths,  called  the 
united  states,  have  become  so  subject.  If  sovereignty  can  be  di- 
vided, it  can  be  done  in  an  aristocracy  or  a  monarchy,  as  well  as  a 
republic,  for  in  each  and  every  case  it  dwells  in  a  unity  or  "  moral 
person."  The  king  is  the  state  ;  the  queen  and  parliament  are  the 
state  ;  the  aristocracy  is  the  state  ;  and  the  republic  is  the  state.  In 
each  there  must  be  a  will,  a  sovereign  one,  or  there  is  no  state. 


310  SOVEREIGNTY  IN  THE   UNITED   STATES. 

Sovereignty's  Delegations.  —  It  is  obvious  that  the  rulers  in  our 
system  must  be  "  substitutes  and  agents  "  of  the  people,  as  all  the 
fathers,  and  all  the  people,  in  their  constitutions  and  bills  of  rights 
declared  them  to  be. 

Massachusetts  said,  in  her  first  constitution,  as  she  has  done  in  all 
of  them  since  :  "  All  power  residing  originally  in  the  people,  and  being 
derived  from  them,  the  several  magistrates  and  officers  of  govern- 
ment vested  with  authority,  whether  legislative,  executive,  or  judi- 
cial, are  their  substitutes  and  agents,  and  are  at  all  times  accountable 
to  them." 

These  "  substitutes  and  agents  "  being  and  acting  in  a  representa- 
tive capacity,  must,  in  all  their  legitimate  actions  as  such,  have  used 
"powers"  not  their  own,  but  belonging  to  those  whose  "substitutes 
and  agents  "  they  were,  and  whose  members,  citizens,  and  subjects 
they  must  have  been,  — that  is  to  say,  the  commonwealths. 

Remembering,  then,  that  the  commonwealth,  i.  e.  the  people-gov- 
ernment, aimed  to  govern  itself  in  the  most  methodical  and  the  safest 
way,  let  us  suppose  that  she,  by  virtue  of  that  sovereignty  which  all 
the  states  agreed  that  each  possessed  [First  Fed.  Const.,  Art.  II.], 
and  with  a  view  to  rule  through  her  agents,  had  caused  her  powers 
to  be  carefully  prepared,  in  written  form,  by  her  ablest  jurisconsults, 
and  labelled,  numbered,  and  pigeon-holed.  The  following  diagram 
will  present  the  conception.  When  the  process  of  constituting  gov- 
ernment, and  endawing  it  with  trusted  powers,  begins,  the  repository 
or  treasury  is  full,  and  contains  120  formulated  "  powers." 

Now  suppose  the  commonwealth,  which  thus  chooses,  to  have  a 
treasury  of  prepared  powers,  which  she  may  as  easily  have,  as  a  coffer 
for  her  money  or  a  strong-box  for  her  titles,  puts  in  her  state  govern- 
ment 67  powers ;  23  in  the  agency  of  herself  and  sisters  for  federal 
government ;  and  retains  the  rest, — prohibiting  the  use  of  all  powers 
not  thus  entrusted,  and  exacting  an  oath  of  every  official  to  USE  and 
NOT  TO  USE  "  powers,"  just  as  the  said  organic  law  requires.  Keep  it 
in  mind  that  every  official  is  a  member,  a  subject,  and  a  chosen  agent 
of  a  commonwealth.  And  every  delegated  poiver  is  an  entity,  and  a 
trusted  delegation  of  a  commonwealth. 

The  "powers"  numbered  1  to  67  inclusive,  are  trusted  to  the  state 
governmental  agency,  thus  really  forming  the  state  constitution ;  and 
those  numbered  68  to  90  inclusive,  are  trusted  to  the  united  states, 
to  be  administered  by  their  agency  ;  the  rest  remain  in  the  repository, 
as  indicated  by  the  little  figure  in  each  pigeon-hole  from  91  to  120 
inclusive.  [See  illustration  on  opposite  page.] 

The  following  corollaries  are  so  plain  that  he  that  runs  may 
read :  — 


SOVEREIGNTY  ONE  AND  INDIVISIBLE-  311 

1.  "  Reserved,"  or  "  retained "  [see  Fed.  Const.  Amendments  IX. 
and  X.],  necessarily  means  kept  out  of  the  constitution  and  in  the  re- 
pository.    Hence  the  absurdity  of  state  rights  and  powers,  not  dele- 
gated, being  reserved  in  the  federal  pact ;  and  of  "  state  sovereignty 
being  effectually  controlled  "  thereby. 

2.  As  the  same  mind  creates  both  agencies,  and  delegates  both  sets 
of  powers,  conflicts  of  jurisdiction  should  seldom  occur. 

3.  If  a  ruler  take  a  prohibited  power  from  a  state's  repository,  it 
seems  —  like  theft  or  burglary  —  a  crime  ! 

4.  Moreover,   the  use,   by  rulers,   of  reserved  powers    is  perjured 
usurpation. 

5.  The  status  of  the  commonwealth  is  not  changed  by  the  federal 
pact,  and  she  has  all  the  authority  she  ever  had,  —  the  only  powers 
out  of  her,  being  temporary  delegations  or  trusts. 

6.  President  Lincoln,  misled  by  Story,  Webster,  and  Jackson,  was 
grossly  in  error  in  thinking  states  like  counties,  with  only  such  status 
and  rights  as  are  "  reserved  "  to  them  by  the  federal  constitution. 

7.  President  Jackson  was  mistaken  in  thinking  that  the  mere  dele- 
gation of  powers  to  trustees  and  agents  by  a  commonwealth,  was  a 
transfer  of  citizenship,  and  consequently  a  dissolution  of  the  state ; 
for  the  citizens  are  the  state,  and  the  state  is  the  citizens. 

The  investigating  and  thoughtful  reader  will  find  entire  support  to 
the  above  illustration  in  the  following  authorities  :  — 

Amendment  X.  of  the  constitution  declares  that  "all  powers  not 
delegated  to  the  united  states  .  .  .  are  reserved"  etc.  —  showing,  1st. 
That  no  powers  but  delegated  ones  are  in  the  instrument.  2d.  That  the 
only  delegator  must  be  the  then  sovereign  state  that  was  to  ratify,  and 
thereby  establish.  3d.  That  there  was  no  delegatee  but  the  united 
states,  and  that  hence  the  acting  government  is  an  agency.  4th. 
That  all  powers  and  rights  not  put  in  the  constitution,  were  kept  out 
—  i.e.  "  retained"  and  "  reserved  "  —  as  expressed  in  Amendments 
IX.  and  X. 

Next  read  the  unanimous  letter  of  the  convention  to  congress,  char- 
acterizing the  whole  federal  instrument  as  "the  DELEGATING  of  an 
extensive  TRUST." 

Next  read  Chancellor  Pendleton,  supra,  107;  III.  Ell.  Deb.  298, 
299,  301  —  the  last  especially ;  also  Madison,  Federalist,  39,  40,  46  ; 
and  Marshall,  III.  Elliott's  Debates,  227,  233. 

Next  read  Governor  Bowdoin  and  Theophilus  Parsons,  supra,  84. 

And,  finally,  look  at  the  statements  of  the  three  greatest  of  New 
York's  sons,  in  the  light  of  the  following,  which  she  has  declared 
and  re-declared  from  1776  to  this  day,  and  which  every  true  son  of 
New  York  will  defend,  and  ought  to  defend,  to  the  death  :  "  No 


312  SOVEREIGNTY  IN  THE  UNITED  STATES. 

authority  can,  on  any  pretence  whatsoever,  be  exercised  over  the  citizens  of 
this  state,  but  such  as  is,  or  shall  be,  derived  from,  or  granted  by,  the  peo- 
ple of  this  state"  [Const.  N.  Y.  Art.  I.  §  1.] 

Read  Chancellor  Livingston,  supra,  93 ;  Alexander  Hamilton,  Fed- 
eralist, 85;  and  II.  Elliott's  Debates,  353  et  seq.;  and  John  Jay, 
supra,  92. 

The  sure  conclusion  of  every  line  of  honest  and  logical  thought  is, 
as  John  Jay  expresses  it,  that  the  government  receives  "  the  part  of 
the  people's  business  entrusted  to  them,  not  for  themselves,  but  as 
the  agents  and  overseers  of  the  people,"  —  the  true  idea  being  that  the 
individual  sovereign  states  delegated  all  the  powers  granted,  to  them- 
selves, as  associate  sovereign  states,  —  the  latter  necessarily  adminis- 
tering them  through  an  agency  or  joint  commission  of  their  subjects, 
chosen  by  themselves  respectively. 

Sovereignty  owns  all  the  "  powers "  of  government ;  it  governs 
through  mind  and  by  will ;  it  delegates  its  powers  in  trust,  and  for 
its  own  use,  to  its  chosen  subjects  and  agents. 

The  powers  it  does  not  delegate,  it  keeps  back ;  and  it  is  a  crime 
for  agents  and  servants  to  take  and  use  them. 


CHAPTER  VI 

ERRONEOUS  VIEWS  OF  SOVEREIGNTY. 

AFTER  careful  reading  of  the  constitution  in  the  light  of  history, 
the  surprise  of  reading  Story,  and  the  paraphrases  of  him  by 
Lincoln  in  1861,  by  the  Philadelphia  convention  in  1866,  and  by 
the  federal  supreme  court  more  recently,  is  only  equalled  by  the 
pain  of  seeing  their  general  promulgation,  vast  following,  and  ruinous 
consequences.  The  confiding  masses  readily  yield  assent  to  misstate- 
ments  and  untruths,  if  leading  men  —  great  or  small  —  constantly 
string  them  on  a  plausible  thread  of  sophistry ;  while  those  whose  duty 
it  is  to  find  and  proclaim  the  truth,  seem  to  stand  in  criminal  silence 
or  abject  discouragement,  forgetting  the  eternally  salutary  rule  of 
telling  the  truth,  doing  justice,  and  leaving  results  to  God. 

It  seems  absurd  to  meet  by  analysis  and  argument  many  of  the 
dogmas  of  consolidation,  that  really  must  be  examined,  and  tested  by 
truth,  under  the  very  eye  of  the  people,  so  that  misstatements  and 
sophistries,  as  well  as  their  advocates,  can  be  put  under  the  ban  of 
public  reprobation. 

The  Teaching  that  the  States  are  mere  Counties  runs  about 
as  follows  :  "  We,  the  people,"  as  a  nation  made  the  constitution.  It 
is  "  the  supreme  law  of  the  land,"  and  it  "  reserves  to  the  states,  or 
to  the  people,"  all  "powers  not  delegated  to  the  united  states." 
Hence,  the  states  have  no  status  or  rights,  except  what  the  nation 
has  "  reserved  to  them,"  in  its  supreme  law.  Judge  Story  puts  it 
as  follows :  "  There  is  a  limited  supreme  sovereignty  conferred  upon 
the  national  government  by  the  constitution  of  the  united  states." 
[Bills  of  Exchange,  §  23.]  The  Philadelphia  convention's  claim,  that 
"  the  government "  holds  the  states  under  allegiance,  and  the  federal 
supreme  court's  declaration  that  the  said  government  "  is  supreme  and 
above  the  states"  have  been  heretofore  stated.  The  complement  of  all 
this  treason  is,  that  the  right  of  deciding  finally  on  all  disputed  juris- 
dictions belongs  to  the  said  government  —  this,  of  course,  sealing  the 
subjection  of  state  authority  and  existence.  [Supra,  160.] 


314  SOVEREIGNTY  IN  THE  UNITED   STATES. 

Amazing  as  this  may  seem,  there  are  thousands  of  so-called  repub- 
licans, and  so-called  democrats,  who  actually  have  minds  —  shave 
beards  —  talk  politics,  and  assume  to  lead,  who  stand  upon  the  false 
doctrine,  and  say  they  are  "  state-rights  men  "  ! 

Defences  Changed  to  Means  of  Attack.  —  The  above  is  really 
the  most  pernicious  expounding  we  have,  because  it  bears  a  semblance 
to  fair  exposition,  and  deludes  the  people  into  the  idea  that  their 
beloved  commonwealths  are  impregnably  fortified  by  the  constitution, 
while  in  reality  that  constitution,  with  its  forces,  is  perverted  into 
an  engine  of  destruction,  that  will  grind  them  to  powder.  To  use 
the  figure  of  Fisher  Ames,  the  states  are  on  "  the  naked  beach ;  and 
the  union  is  the  dyke  to  fence  out  the  flood."  As  long  as  it  is  ad- 
mitted that  the  states  are  the  makers,  owners,  and  controllers  of  the 
dyke,  it  is  all  right ;  but  the  prevailing  idea  is,  that  a  superior  power, 
with  their  safety  in  charge,  dyked  them  in,  and  can,  by  construction, 
increase  that  dyke  to  the  walls  of  an  impregnable  fortress,  and  can 
at  will,  and  on  the  plea  of  necessity,  turn  its  guns  inward  upon  the 
states !  Offence  and  defence  are  relative,  and  walls  can  be  used  for 
protection  or  restraint  !  History  is  full  of  instances  of  citadels  be- 
coming prisons  to  the  owners,  —  useful  machines  proving  to  be  traps, 
and  "  engineers  hoist  with  their  own  petards."  At  all  events,  the  peo- 
ple, under  this  treason,  are  losing  liberty  ! 

"  The  States  are  Sovereign,  except,"  etc.  —  Let  us  now  pro- 
ceed to  expose  the  flagrant  error  (or  mistake)  of  the  "  expounders," 
on  this  subject.  Judge  Story,  in  his  Bills  of  Exchange,  §  23,  thus 
sets  it  forth :  "  Each  state  is  absolutely  sovereign  in  its  political 
organization  and  government  and  dominion,  saving  and  excepting 
only  so  far  as  there  is  a  limited  supreme  sovereignty  conferred  upon 
the  national  government,  by  the  constitution  of  the  united  states." 

Webster,  in  a  letter  to  Baring  Brothers  &  Co.,  October  16,  1839, 
said  :  "Every  state  is  an  independent  sovereign  political  community, 
except  in  so  far  as  certain  powers,  which  it  might  otherwise  have 
exercised,  have  been  conferred  on  a  general  government,  established 
under  a  written  constitution." 

Hon.  A.  H.  Stephens,  in  his  War  between  the  States,  vol.  i,  p.  403, 
claims  that  Mr.  Webster  in  the  above,  and  in  his  argument  in  the 
"Bank  of  Augusta  vs.  Earle"  (13  Peters,  599),  fully  admits  that  "the 
states  are  sovereign,  except  in  so  far  as  they  have  delegated  specific 
sovereign  powers."  It  is  difficult  to  see  how  this  so-called  admission 
helps  Mr.  Stephens' s  argument,  or  proves  a  change  in  Mr.  Webster's 
views  between  1833  and  1839.  I  fancy  Mr.  Webster  might  cogently,  if 
not  conclusively,  reply  as  follows  :  "  You  state  my  admission  correctly. 
I  made  it  in  1833  as  well  as  1839;  and  on  the  former  occasion  I 


ERRONEOUS   VIEWS  OF  SOVEREIGNTY.  315 

added,  as  on  the  latter  I  implied,  that  so  far  as  those  '  specific  soVer- 
eign  powers '  go,  *  so  far  state  sovereignty  is  effectually  controlled.' 
By  claiming  my  admission  of  your  statement,  you  admit  mine.  We 
agree,  then,  that  as  to  the  *  specific  sovereign  powers,'  the  states  are 
not  sovereign,  and  that  hence  « so  far  state  sovereignty  is  effectually 
controlled.' "  Should  not  Mr.  Stephens,  to  escape,  change  his  base, 
and  say  he  did  not  mean  sovereign  powers?  In  truth,  there  are  no 
such  in  the  constitution  —  all  being  subordinate.  However,  all  the 
writers  of  the  Massachusetts  school  state  the  doctrine  exactly  as  Mr. 
Stephens  (inconsistently  with  his  theory)  seems  to  admit  the  same. 

I  will  present  here  two  more  expressions,  because  of  their  represent- 
ative character,  and  because  they  show  that,  as  to  constitutional 
views,  there  is  little  or  no  difference  between  the  great  parties  of  the 
day.  George  H.  Pendleton  said  in  a  speech  at  Bangor,  Maine,  in 
1868:  "  The  men  of  1787,  .  .  .  committed  to  the  federal  government 
inter-state  and  international  affairs.  All  the  rest  they  reserved  to  the 
states  themselves.  Within  this  narrow  sphere  they  made  the  federal 
government  supreme.  All  beyond  remained  to  the  unimpaired  sove- 
reignty of  the  several  states."  Further  along,  he  calls  our  system 
"a  union  of  states,  .  .  .  sovereign,  except  in  so  far  as  they  have  dele- 
gated the  exercise  of  some  powers,"  etc.  Is  there  any  difference 
between  Mr.  Pendleton's  statement  and  that  of  Mr.  Stephens  1  And 
the  New  York  World  agrees  with  its  neighbors,  the  Tribune  and  the 
Times,  on  this  point.  Its  expression  is  that  the  states  are  "not 
sovereign,  except  as  to  their  reserved  rights."  By  "  reserved  rights  "  it 
means  such  as  are  reserved  to  the  states  in  the  general  constitution. 

Do  not  these  expounders  all  stand  upon  Lincoln's  dogma,  that  the 
states  of  the  union  are  but  counties  or  municipal  divisions  of  a  great 
nation,  with  no  rights  at  all  except  what  the  said  constitution  reserves 
to  them;  or  Webster's  equivalent,  that  "the  nation"  "ordained" 
"the  constitution,"  "and  therein  they  established  a  distribution  of 
powers  between  this,  their  general  government,  and  their  several  state 
governments  "  1  Obviously,  the  only  respect  in  which  Webster  and 
others  differ  from  Lincoln,  is  that  this  "  expounder  "  blurts  it  out  that 
states  are  counties,  while  those  merely  imply  —  but  as  certainly  mean 
—  the  same.  Indeed,  one  of  the  ablest  writers  of  this  school  said,  in 
the  North  British  Review  for  January,  1870,  that  "  the  history  of  state 
sovereignty  ends,  and  the  history  of  state  rights  begins,  at  the  federal 
convention  of  1787,"  —  meaning  by  state  rights  those  provided  for 
and  guarantied  in  the  federal  constitution.1  Practically  "the  school" 

1  This  writer  like  many  —  yes,  thousands,  argued  ably  on  a  subject  he  did  not  under- 
stand—  not  knowing  the  facts.  Another  of  his  expressions  is  the  following:  "The 
united  states  constitution  started  into  life,  with  a  full  recognition  of  state  sovereignty  in 


316  SOVEREIGNTY  IN  THE  UNITED  STATES. 

seem  to  teach,  or  believe,  that  the  states  have  no  status  or  rights 
whatever,  independently  of  the  general  constitution ;  and  this  is,  log- 
ically, Webster's  view  of  1833.  It  should  seem  inexpressibly  absurd 
to  say,  that  rights  and  powers  "retained,"  or  "reserved,"  [see 
Amendments  IX.  and  X.]  were  not  kept  out  of  the  constitution,  and  in 
the  pre-existent  states,  that  ratified  and  thereby  ordained  and  estab- 
lished it.  "  Well-known  words  must  be  taken  in  their  well-known 
sense,"  says  Webster. 

As  this  weak  and  fallacious  dogma  is  the  corner-stone  —  nay,  the 
whole  foundation,  of  the  expounding  "  school,"  the  reader  may  wish  to 
see  it  in  its  most  respectable  dresses.  Let  him  look,  then,  at  Brown- 
son's  American  Republic,  Draper's  Civil  War,  Cooley's  Constitutional 
Limitations,  Greeley's  American  Conflict,  Jameson's  Constitutional 
Convention,  Lunt's  Origin  of  the  War,  Parker's  Harvard  Lectures  of 
1865-6,  etc. 

Delegating  is  Irrevocably  Granting.  —  With  amusing  naivete,  Mr. 
George  T.  Curtis,  while  declining,  in  a  recent  controversy  with  Mr. 
A.  H.  Stephens,  to  defend  Mr.  Webster's  views  on  "political  sove- 
reignty," sets  them  forth  as  follows :  "  When  the  states  ratified  the 
constitution,  they  parted  with  a  part  of  their  sovereignty,  and  yet 
remained  states.  .  .  .  The  sovereign  powers  of  a  people  are  divisible, 
so  that  a  portion  can  be  granted  irrevocably,  and  a  part  retained." 
[See  his  letter  in  N.  Y.  World,  August  23,  1869.  See  also  the 
World  of  Jane  3,  1868.]  The  reader  will  please  notice  here  that  the 
"  sovereign  powers  "  to  be  parted  with,  or  reserved,  are  treated  of  as 
identical  with  "  sovereignty." 

The  above  expression  may  be  taken  as  the  views  of  Dane,  Story, 
Webster,  Curtis,  G.  H.  Pendleton,  and,  in  short,  of  the  whole  Massa- 
chusetts school.  They  admit,  strange  to  say,  that  the  states,  as 
sovereign  political  communities,  ratified  and  established  the  constitu- 
tion ;  but  they  untruly  assert  (and  in  doing  so  disregard  history  and 
reason)  that  the  said  states  thereby  excepted  out  of  their  sovereignty 
a  national  sovereignty  which  effectually  controls  them.  The  very 
constitution  itself,  with  its  "  plain  tale,  puts  them  down "  !  What 
they  incorrectly  and  sophistically  call  exceptions  out  of  sovereignty, 
are  expressly  characterized,  by  the  constitution  itself,  as  delegated 

the  senate,  and  of  national  sovereignty  in  the  house  of  representatives ;  and  the  problem, 
how  to  harmonize  the  two,  was  the  legacy  of  the  federal  convention  to  the  American 
people." 

Such  legacv  was  never  thought  of,  much  less  left.  The  commonwealths  of  people 
were  to  govern  themselves,  jointly  and  severally.  Having  the  right  to  do  so  from  God, 
they  had  sovereignty  in  them.  "It  never  leaves  them."  [Wilson.]  The  senators  and 
representatives  of  a  state  were  the  delegation  of  that  state.  All  those  delegations  made 
the  congress  of  the  states,  which  are  the  sovereignty  as  to  general  affairs  —  a  joint  sove- 
reignty of  commonwealths. 


ERRONEOUS  VIEWS  OF  SOVEREIGNTY.        317 

powers.  And  it  contains  no  powers  but  delegated  ones ;  these,  as  the 
phrase  solely  means,  being  confided  to  agents  or  representatives,  for 
the  use  and  behoof  of  the  delegators  or  sovereigns. 

Arguing  from  False  Words.  —  As  the  constitution  contains,  and 
contemplates,  no  other  "  powers  "  than  those  "  delegated,"  these  must 
necessarily  be  used  by  agents  or  trustees,  i.  e.  persons  who  act  for  the 
supreme  authority  that  the  said  powers  belong  to.  So  when  the 
Danes,  Storys,  Websters,  Jacksons,  Curtises,  Parkers,  Brownsons, 
Drapers,  Pendletons,  Liucolns,  Jamesons,  Greeleys,  Johnsons,  and 
others,  talk  and  write  of  "  ceding,"  "  transferring,"  "  parting  with," 
"relinquishing,"  "surrendering"  —  all  in  the  sense  of  alienating  — 
sovereignty,  and  say  it  is  done  "  irrevocably,"  while  they  suppress  the 
real  constitutional  language,  which  bears  a  totally  different  meaning, 
they  only  escape  the  imputation  of  ignorance  by  incurring  a  worse 
one  ;  and  those  of  them  officially  sworn  to  support  and  preserve  the 
constitution  must,  if  they  escape  the  former  alternative,  meet  the 
additional  charge  of  perjury. 

It  is  certain  that  neither  the  constitution  nor  the  sacred  teachings 
of  the  fathers  contain  any  warrant  for  such  a  doctrine  as  the  states 
committing  suicide,  or  as  their  contemplating  any  other  sovereignty 
to  amend  the  constitution  than  that  which  established  it,  namely, 
their  own.  Hence  the  immortal  Washington  wrote,  "  by  unanimous 
order  of  the  convention,"  that  making  the  constitution  was  the  "  dele- 
gating "  of  an  "  extensive  trust"  — this  agreeing  strictly  with  the  in- 
strument itself,  which  expressly  and  exclusively  provides  for  "  powers 
delegated,"  and  for  none  whatever  that  are  "granted  IRREVOCABLY." 
And  hundreds  of  pages  from  the  fathers  could  be  here  quoted, 
to  show  the  falsity  of  the  idea  that  sovereignty  was  transferred  at 
all  —  let  alone  "  irrevocably,"  -  -  but  not  a  line  in  its  favor.  Nay, 
more,  I  will  venture  to  say,  that  as  no  man  can  believe  an  obvious 
untruth,  the  great  mind  of  Webster  never  believed,  and  Mr.  Curtis 
does  not  now  believe,  that  the  sovereignty  of  the  people  is  "  divisible, 
so  that  a  portion  can  be  granted  irrevocably,  and  a  part  be  retained.'* 

Is  not  this  particular  expounding  now  degraded  to  the  rank  of  a 
misstatement,  and  made  to  appear  so  absurd  that  any  mere  soph- 
ist, upon  being  convicted  of  it,  would  rather  say,  "  I  aimed  to  cheat 
with  it,"  than  "  I  believed  it "  1 

The  Fathers  never  held  such  dogmas,  though  they  sometimes 
used  the  word  sovereignty  in  the  sense  of  government,  rather  than 
the  right  of  government.  But  they  nowhere  say  or  hint  that  the 
states,  as  political  bodies,  are  "  sovereign,  except  so  far "  as  they  are 
not  sovereign,  —  this  being  precisely  the  idea  of  all  these  modern 
expounders.  In  those  days  of  political  experiment,  the  fathers  were 


318  SOVEREIGNTY  IN  THE  UNITED   STATES. 

to  be  excused  for  misnomers,  for  the  subject  was  new  to  them,  and  all 
their  political  ideas  and  language  came  from  European  sources,  where 
sovereignty  is  held  of  original  right,  and  wielded  by  the  visible  govern- 
ment, this  being  monarchical ;  while  in  the  united  states,  the  govern- 
ment has  no  original  rights  and  powers  whatever,  and  the  sovereignty 
dwells  down  in  the  people  always,  and  is  only  manifested  through 
"  substitutes  and  agents."  Moreover  the  powers  of  making  war,  peace, 
treaties,  coinage,  and  of  taxing,  etc.,  were  commonly  called  "  sove- 
reign powers  ; "  and  the  fathers,  to  be  intelligible,  spoke  to  the  people 
in  common  parlance,  not  dreaming  that  their  language  would  make 
confusion  of  ideas,  and  furnish  pretexts  for  sophistical  exposition  in 
the  future..  At  all  events,  they  nowhere  hint  the  idea  of  Webster, 
that  so  far  as  the  delegated  powers  in  the  constitution  go,  "so  far  state 
sovereignty  is  effectually  controlled." 

Politicians,  like  Sheep,  follow  a  Bell.  —  It  is  doubtful  if  any  man 
ever  lived  who  was  capacitated  to  entertain  the  idea  of  a  sovereignty  del- 
egating a  sovereignty,  which  could  rightfully  coerce  the  sovereignty  that 
did  the  delegating  —  at  least  until  office-seeking  came  to  be  a  profession, 
and  facts,  falsehoods,  sound  arguments,  sophistries,  and  frauds,  equal 
cards  in  all  political  games.  Politicians  adopt  and  follow  the  doctrines 
of  leaders  and  conventions,  as  thoughtlessly  as  sheep  follow  bell-weth- 
ers. They  all  start  from  Story  and  Webster's  dogmas,  as  from  postu- 
lates or  premises.  If  they  delve  at  all  in  the  mine  of  constitutional 
history,  they  pass  by  a  thousand  proofs  of  the  falsehood  of  those  dog- 
mas, to  cull  a  few  seeming  evidences  of  their  correctness.  They  dare 
not  bring  out  the  truth,  for  although  it  may  "  run  and  be  glorified," 
it  runs  slowly,  and  they  cannot  go  into  the  next  generation  to  run 
for  office  on  it.  Would  Seymour  have  received  a  vote  in  the  conven- 
tion of  1868,  if  he  had  expressed  the  views  of  Washington,  Franklin, 
Hamilton,  and  Madison  ]  Would  George  H.  Pendleton  be  thought 
of  for  the  presidency,  if  his  was  the  faith  of  the  fathers  (for  instance, 
the  ideas  of  Chancellor  Pendleton  in  the  Virginia  ratifying  conven- 
tion) instead  of  the  Massachusetts  school  ?  The  modern  Pendleton 
thinks  the  powers  delegated  by  the  states  can  be  used  by  the  subjects 
of  the  states,  to  coerce  these  bodies  into  obedience  to  the  said  powers. 
And,  mirabile  dictu  !  Hon.  A.  H.  Stephens  "  leaves  his  own,  to  stand 
on  foreign  ground,"  and  strays  into  the  flock.  Let  us  see.  Of  course 
he  concedes  that  all  the  powers  of  the  federal  constitution  are  to  be 
enforced.  Then  the  "specific  sovereign  powers,"  he  speaks  of,  are  to  be 
enforced  "  over  the  authority  delegating  "  them  so  long  as  they  "  are  un- 
resumed."  Hence,  Mr.  Stephens's  own  words  assert  a  coercive  power 
in  the  federal  pact  over  the  states.  The  theory  of  his  book,  however, 
is,  or  seems  to  be,  the  one  unanimously  held  by  the  fathers,  to  wit : 


ERRONEOUS   VIEWS  OF   SOVEREIGNTY.  319 

that  the  states  were  to  associate,  and  conjointly  act,  in  general  govern- 
ment, with  entire  voluntarincss,  and  that  this  inconsistent  and  mis- 
chievous war-power  of  coercing  states  was  to  be  carefully  excluded. 

Hon.  A.  H.  Stephens  and  others  on  Sovereignty.  —  Mr.  Stephens, 
in  his  "  War  between  the  States,"  expresses  some  views  utterly  incon- 
sistent with  his  general  theory.  I  purpose  now  to  notice  these  some- 
what, together  with  kindred  views  of  other  most  eminent  conservative 
politicians.  In  Vol.  I.,  pp.  488-9,  he  says  that  "sovereignty  is  the 
highest  and  greatest  of  all  political  powers  ;  that  it  is  the  source,  as  well 
as  the  embodiment,  of  all  powers ; "  that  it  is  susceptible  of  partition 
and  transfer ;  that  "  if  sovereignty  is  not  parted  with  by  the  states, 
in  express  terms,  .  .  .  it  is  still  retained  and  reserved  to  the  people  of 
the  several  states,  in  that  mass  of  residuary  rights,  which  was  expressly 
reserved  in  the  constitution  itself ; "  and,  finally,  that  it  was  "  not 
expressly  reserved  in  the  constitution  at  first,"  but  was  "  soon  after  " 
"  expressly  reserved  "  in  the  Tenth  Amendment. 

This  all  means  that  sovereignty,  which  must  be  the  peculiar  and 
essential  characteristic  of  a  state,  —  the  very  one  that  causes  it  to 
differ  from  a  county  or  a  province,  which  consists  of  the  right  of  com- 
mand over  everything,  and  which  was  supposed  to  be  above  all  rights 
and  powers,  and  to  have  the  absolute  disposal  of  them,  —  is  divisible, 
and  subject  to  grant  or  reservation ;  and  that,  though  it  might  have 
been  parted  with,  it  is  actually  reserved  to  the  states  in  the  Tenth 
Amendment  of  the  federal  constitution,  —  this  being  the  sole  source 
of,  and  their  only  title  to,  their  sovereignty  !  Moreover,  he  calls 
these  alleged  fractions  of  sovereignty  "specific  sovereign  powers." 
All  this  resembles  the  doctrines  of  Dane,  Story,  Webster,  Curtis, 
G.  H.  Pendleton,  and  the  New  York  World,  but  not  those  of  A.  H. 
Stephens. 

The  former  could  say  to  Mr.  Stephens  :  "  As  you  assert,  the  sove- 
reignty of  the  states  '  was  not  expressly  reserved  in  the  constitution  at 
first,'  but  was  afterwards  '  expressly  reserved '  in  the  Tenth  Amendment. 
Did  not  the  constitution  thenceforward  provide  the  practical  means  of 
preserving  that  sovereignty  ?  Did  not  the  guaranty  of  a  republican 
form  of  government  [Art.  IV.,  §  4],  and  the  amendment  in  question, 
aided  by  other  clauses,  empower  and  charge  the  government  to  see 
that  the  states  are  protected  in  their  rights  as  reserved,  including  this 
right  of  sovereignty  1  As  sovereignty  is  thus  placed  in  and  under  the 
constitution,  as  you  admit,  it  must  consist  with  the  *  specific  sovereign 
powers,'  which  you  say  are  granted  in  the  other  parts  of  the  instru- 
ment. Do  you  not,  therefore,  admit  that  Mr.  Webster  is  right  in  his 
dictum,  that,  '  so  far  as  the  constitution  goes,  so  far  state  sovereignty 
is  effectually  controlled '  ? " 


320  SOVEREIGNTY  IN  THE  UNITED  STATES. 

Does  not  Mr.  Stephens,  then,  seem  entangled  in  the  meshes  of  his 
own  logic,  so  that  his  only  escape  is  to  admit  that  the  constitution  does 
not  involve  state,  or  any  other,  sovereignty,  but  that  the  pact,  includ- 
ing the  government  it  provides  for,  remains,  as  a  created  instrumen- 
tality, beneath,  and  subject  to,  the  authority  of  the  states  which 
established  it,  as  the  terms  of  their  association  1  This,  indeed,  seems 
to  be  the  general  theory  of  his  book. 

In  order  not  to  do  Mr.  Stephens  injustice,  I  here  quote  him  at  con- 
siderable length,  using  some  italics  for  my  purpose  :  — 

"...  One  of  the  main  objects  in  forming  the  compact,  as  before 
stated,  and  as  clearly  appears  from  the  instrument  itself,  was  to  pre- 
serve and  perpetuate  separate  state  existence.  The  guaranty  to  this 
effect,  from  the  very  words  used,  implies  their  sovereignty.  There  can 
be  no  such  thing  as  a  perfect  state  without  sovereignty.  It  certainly 
is  not  parted  with  by  any  express  terms  in  that  instrument.  If  it  be 
surrendered  thereby,  it  must  be  by  implication  only." 

He  shows  that  this  cannot  be,  and  proceeds :  — 

"  For  sovereignty  is  the  highest  and  greatest  of  all  political  powers. 
It  is  itself  the  source,  as  well  as  embodiment,  of  all  political  powers, 
both  great  and  small.  All  proceed  and  emanate  from  it.  All  the 
great  powers,  specifically  and  expressly  delegated  in  the  constitution, 
such  as  the  power  to  declare  war  and  make  peace,  to  raise  and  sup- 
port armies,  to  tax  and  lay  excise  duties,  etc.,  are  themselves  but  the 
incidents  of  sovereignty.  If  this  great  embodiment  of  all  powers  was 
parted  with,  why  were  any  minor  specifications  made?  Why  any 
enumeration  ?  Was  not  such  specification  or  enumeration  both  useless 
and  absurd  1 

"  All  the  implications  are  the  other  way.  The  bare  fact  that  all 
the  powers  parted  with  by  the  states  were  delegated  only,  as  all  admit, 
necessarily  implies  that  the  greater  power  delegating  still  continued  to 
exist. 

"  If,  then,  this  ultimate,  absolute  sovereignty  did  reside  with  the 
several  states  separately,  as  without  question  it  did,  up  to  the  forma- 
tion of  the  constitution  ;  and  if,  in  the  constitution,  sovereignty  is  not 
parted  with  by  the  states,  in  express  terms ;  if,  as  Mr.  Webster  said  in 
1839,  there  is  not  a  word  about  sovereignty  in  it,  and  if,  further,  this 
greatest  of  all  political  powers  cannot  justly  be  claimed  as  an  incident 
to  lesser  ones,  and  thereby  carried  by  implication,  then,  of  course,  was 
it  not  most  clearly  still  retained  and  reserved  to  the  people  of  the 
several  states,  in  that  mass  of  residuary  rights,  in  the  language  of  - 
Mr.  Jefferson,  which  was  expressly  reserved  in  the  constitution  itself] 

"  It  is  true,  it  was  not  so  expressly  reserved  in  the  constitution  at 
first,  because  it  was  deemed,  as  the  debates  in  the  federal  convention, 


ERKONEOUS  VIEWS  OF  SOVEREIGNTY.  321 

as  well  as  the  state  conventions,  clearly  show,  wholly  unnecessary ;  so 
general  was  the  understanding  that  it  could  not  go  by  inference  or 
implication  from  anything  in  the  constitution,  or,  in  other  words,  that 
it  could  not  be  surrendered  without  express  terms  to  that  effect.  The 
general  understanding  was  the  universally  acknowledged  principle  in 
public  law,  that  nothing  is  held  good  against  sovereignty  by  implica- 
tion. But  to  quiet  the  apprehensions  of  Patrick  Henry,  Samuel 
Adams,  and  the  conventions  of  a  majority  of  the  states,  this  reserva- 
tion of  sovereignty  was  soon  after  put  in  the  constitution,  amongst 
other  amendments,  in  plain  and  unequivocal  language.  .  .  . 

"  This  amendment,  which  was  promptly  agreed  to  by  the  states, 
unanimously  declared  that  all  powers  not  delegated  were  reserved  to  the 
states  respectively.  This  of  course  includes,  in  the  reservation,  sove- 
reignty, which  is  the  source  of  all  powers,  those  DELEGATED  AS  WELL  AS 
THOSE  RESERVED.  This  reservation,  Mr.  Samuel  Adams  said,  we  have 
seen  in  the  Massachusetts  convention,  was  consonant  with  the  like 
reservation  in  the  first  articles  of  confederation."  [I.  Stephens's  War, 
etc.,  pp.  488-9.] 

Let  us  stop  a  moment  to  analyze  and  look  closely  at  this  state- 
ment :  — 

1st.  Of  twenty  different-sized  "political  powers,"  for  example,  "the 
highest  and  greatest "  would  be  "  sovereignty."  What  would  the  rest  be? 
If  sovereignty  be  taken  away,  where  is  the  right  to  use  the  rest  1 

2d.  But  sovereignty  is  no  power  at  all,  for  "  it  is  the  source  of  all 
political  powers,"  —  the  spring,  which  remains,  while  the  rill  flows  out 
forever.  Good  figure  and  true  !  Mr.  Stephens  should  have  stuck  to 
it.  Sovereignty  is  the  source  of  all  political  powers. 

3d.  He  changes  again,  however,  and  says  sovereignty  is  powers,  i.  e. 
"the  embodiment  of  all  powers !" 

4th.  But  he  changes  yet  again,  and  says  that  even  the  highest  and 
greatest  of  them  (the  same  he  has  just  asserted  to  be  sovereignty,  as 
the  war-power,  the  tax-power,  etc.),  are  the  mere  "  incidents  of  sove- 
reignty" and,  of  course,  not  sovereignty  itself. 

5th.  He  says  that  as  "  all  the  powers  parted  with  by  the  states 
were  delegated  "  by  sovereignty,  it  "  implies  that  the  greater  power 
delegating  still  continued  to  exist." 

6th.  He  finally  says,  citing  Mr.  Jefferson,  that  sovereignty  was  in 
"  a  mass  of  residuary  rights,  expressly  reserved  in  the  [original]  con- 
stitution ; "  but  that,  not  being  itself  expressly  reserved,  it  was,  several 
years  afterwards,  expressly  reserved  in  the  Tenth  Amendment,  which, 
we  find,  simply  declares  that  all  POWERS  not  delegated  are  reserved. 

The  plain  truth  is,  that  neither  the  constitution,  nor  the  tenth  or 
any  other  amendment,  has  aught  to  do  with  sovereignty,  for  this  entity 

21 


322  SOVEREIGNTY  IN  THE  UNITED  STATES. 

is  not  subject  to  either  delegation  or  reservation,  as  has  been  shown. 
It  dwells  permanently  in  bodies-politic,  acting  through  their  organs, 
in  delegating  or  reserving  powers,  all  that  are  delegated  being  put  by 
sovereignty  in,  and  all  not  delegated  being  kept  by  sovereignty  out  of, 
the  constitution. 

Sovereign  American  Citizens.  —  Our  politicians  affect  fanciful, 
attractive,  and  startling  ideas,  especially  such  as  natter  the  people. 
Every  citizen  is  a  sovereign.  Often  the  idea  comes  up  in  a  form  and 
place  to  blush  for.  For  instance,  Anson  Burlingame,  of  Massachusetts, 
claimed  in  Europe,  on  the  basis  of  personal  sovereignty,  the  equality 
of  an  American  citizen  with  European  crowned  heads.  Governor 
William  Allen,  of  Ohio,  not  only  seems  to  think  that  we  have  just 
the  number  of  sovereigns  that  we  have  voters,  but  that  they  desove- 
reignize  themselves  at  every  election.  Witness  the  following,  from 
his  speech  at  Columbus,  August  20,  1873  :  When  you  elect  a  repre- 
sentative to  congress,  "  you  divest  yourselves  of  your  sovereign  power, 
and  put  it  all  in  the  hands  of  one  man."  "  At  six  o'clock  in  the 
morning,  these  ten  thousand  men  are  the  sovereign  people."  "  At  six 
o'clock  in  the  evening,"  they  have  completely  "divested  themselves  "  of 
sovereignty,  and  "  concentrated  this  tremendous  power  in  the  hands  of 
one  man."  In  other  words,  sovereignty  does  not  dwell  fixedly  in  the 
people  as  organized,  i.  e.  in  the  mind  and  will  of  the  state,  but  bobs 
up  and  down  with  the  successive  delegations  and  withdrawals  of 
power,  like  the  hammers  of  a  piano,  or  the  "  merry  dancers  "  of  the 
Aurora  Borealis. 

Squatter  Sovereignty.  —  Again,  General  Cass  and  Judge  Douglass, 
two  democratic  candidates  for  the  presidency,  seemingly  ignoring  the 
pre-established  sovereignty  of  the  American  united  societies,  the  asso- 
ciated commonwealths,  over  the  territory  they  jointly  owned,  held 
that  these  personal  sovereigns  could  go  and  associate  themselves  for 
self-government  on  such  part  of  the  public  domain  as  they  pleased, 
and,  ipso  facto,  become  sovereign  and  exclusive.  If  nomadic,  of  course, 
their  lines  might  rightfully  fall  in  any  and  all  pleasant  places  they 
might  from  time  to  time  wander  to  and  occupy. 

The  fact  that  these  astute  politicians  labelled  their  theory  "  popular 
sovereignty,"  which  is  precisely  the  theory  of  this  book,  did  not  make 
it  respectable,  or  even  worthy  of  refutation.  [But  see  Ch.  X.  infra.] 

Only  in  organization  have  the  people  sovereignty,  and  they  are 
organized  and  capacitated  to  act,  in  political  affairs,  only  as  common- 
wealths or  states,  as  we  have  seen.  As  such,  they  have  established  a 
league  "  between  the  states,"  i.  e.  themselves,  and  at  the  same  time, 
and  in  the  same  instrument,  constituted  a  governmental  agency  to 
rule  their  subjects  for  them.  Their  law,  whether  the  "  supreme  "  funda- 


ERRONEOUS  VIEWS  OF  SOVEREIGNTY.       323 

mental  one,  or  the  state  constitution,  is  the  harness  or  machine  in 
which  work  these  agents,  who  are  selected  by  the  said  sovereign 
people  from  among  their  subjects,  and  commissioned  and  sent  and 
sworn  to  do  certain  written  duties,  and  to  abstain  from  all  not  written 
or  implied.  This  is  plain  common  sense. 

The  attentive  reader  will  now  see  and  appreciate  the  error  in  the 
following  ascription  of  sovereignty  to  persons,  by  a  conservative  and 
able  professor  of  a  great  college,  who  seems  to  fall  a  little  short  of  the 
true  idea  —  viz.  that  our  members  of  states  (i.  e.  the  "  men "  that 
"constitute  a  state")  have  a  dual  capacity,  and  govern  only  in  their 
collective  one.  They,  as  the  state,  rule,  votes  being  mere  instruments 
of  the  said  state,  ordained  in  her  constitution,  through  which  she 
determines,  formulates,  and  executes  her  will.  The  professor  says  : 
"  The  franchise  is  a  prerogative  act.  It  is  the  act  of  a  sovereign.  It 
is  performed  without  any  responsibility  whatever,  except  to  one's  own 
judgment  and  conscience.  And  furthermore,  although  we  are  fond  of 
boasting  that  every  citizen  is  a  sovereign,  let  us  not  forget  that  every 
one  is  also  a  subject." 

In  conclusion  of  this  chapter,  to  aid  honest  reflection,  I  will  present 

Some  Decisive  Definitions. — As  Daniel  Webster,  in  his  speech 
of  1833,  says  that  "well-known  words"  should  be  taken  in  their 
"  well-known  sense  "  in  expositions  of  the  constitution,  I  will  invite 
Noah  to  "  come  to  judgment "  and  correct  Daniel  with  the  "  well- 
known  sense  "  of  the  leading  words  herein  used.  The  hundreds  of 
dictionaries  in  the  library  of  the  British  Museum  all  agree  with  the 
impartial  and  decisive  judgment  (for  such  it  may  be  considered)  of 
the  great  American  lexicographer.  I  quote  from  a  genuine  edition. 

"  SOVEREIGNTY,  n.  Supreme  power ;  supremacy ;  the  possession 
of  the  highest  power,  or  of  uncontrollable  power."  It  is  obvious  that 
the  word  has  but  one  meaning ;  and  that  it  is  a  superlative  and  un- 
qualifiable  word.  This  definition  shows  all  the  phrases  quoted  at  the 
beginning  of  Chapter  V.  to  be  gross  errors. 

"  WILL,  n.  1.  The  power  of  choosing ;  the  faculty  or  endowment  of 
the  soul,  by  which  it  is  capable  of  choosing  ;  the  faculty  of  selecting  or 
preferring  one  of  two  or  more  objects.  2.  The  choice  which  is  made  ; 
a  determination  or  preference  which  results  from  the  act  or  exercise 
of  the  power  of  choice  ;  a  volition.  3.  The  choice  or  determination  of 
one  who  has  authority ;  a  decree ;  a  command ;  discretive  pleasure." 
[Webster's  Dictionary,  ed.  1844.] 

In  the  edition  of  1859,  under  "  Will"  is  the  following,  which  suits 
my  purpose  :  "  The  will  is  directed  or  influenced  by  the  judgment. 
The  understanding  or  reason  compares  different  objects  which  oper- 
ate as  motives  j  the  judgment  determines  which  is  preferable,  and  the 


324  SOVEREIGNTY  IN  THE  UNITED  STATES. 

will  decides  which  to  pursue.  In  other  words,  we  reason  with  respect 
to  the  value  and  importance  of  things  :  we  then  judge  which  is  to  be 
preferred ;  and  we  will  to  take  the  most  valuable.  These  are  but 
different  operations  of  the  mind,  soul,  or  intellectual  part  of  man." 
[See  also  Locke,  Understanding,  B.  II.  c.  21.] 

The  error  of  the  writers  herein  criticised  seems  to  result  from  their 
not  always  keeping  it  in  mind  that  "will  "  and  "power  "  are  totally 
different  entities  ;  and  that  "  sovereignty  "  is  supremacy  of  will,  while 
power  or  powers  refer  to  the  faculty  or  ability  of  doing,  or  the  author- 
ity to  do,  what  effectuates  will.  A  paralytic  may  have  will  without 
power,  and  an  idiot  power  without  will.  Hence  we  see  that  either  of 
the  said  entities  can  exist  without  the  other.  Legislation  is  sovereign 
will  in  the  shape  of  law,  though  it  is  ineffectual  without  executive 
power. 

"  DELEGATION,  n.  A  sending  away ;  the  act  of  putting  in  commis- 
sion or  investing  with  authority  to  act  for  another ;  the  appointment 
of  a  delegate.  2.  The  person  deputed  to  act  for  another  or  for 
others.  Thus  the  representatives  of  Massachusetts  in  congress  are 
called  the  delegation,  or  ivhole  delegation" 

"DELEGATE,  v.  t.  1.  To  send  away;  appropriately,  to  send  on  an 
embassy ;  to  send  with  power  to  transact  business  as  a  representative. 
.  .  .  2.  To  entrust;  to  commit;  to  deliver  to  another's  care  and 
exercise  ;  as,  to  delegate  authority  or  power  to  an  envoy,  representa- 
tive or  judge." 

POWER.  Any  and  every  power  in  the  constitution,  being  granted 
or  vested  by  delegation,  is  necessarily  "an  authority  which  enables 
one  person  [or  a  set  of  persons]  to  do  an  act  for  another."  [See  note, 
p.  302,  supra.} 

Here  then  is  the  plain  teaching — "the  well-known  sense"-  — of 
these  important  words  :  1.  The  sovereign  mind  (whether  residing 
in  a  monarch,  an  aristocracy,  or  a  state),  in  governing  wills.  2.  Pow- 
ers are,  by  it,  delegated  to  agencies  to  effectuate  its  will.  3.  All 
the  powers  of  the  constitution  of  the  united  states  are  delegated,  and 
are  so  many  specific  authorizations  to  "  substitutes  and  agents  "  to 
carry  out  sovereign  will.  Such  will  must  ever  reside  in  the  people  as 
states,  for  only  thus  did  they  ever  organize  themselves.  Republican 
sovereignty  cannot  be  in  constitutions  or  governments,  not  only  be- 
cause it  must  be  in  the  people,  who  have  ever  the  right  of  govern- 
ment, but  because  the  so-called  governments  are,  by  the  people,  cre- 
ated and  endowed  with  "  delegated  "  authority,  and  are  administered 
by  the  people's  representatives,  who  must  be  members  and  citizens,  and. 
necessarily,  subjects  of  states. 


CHAPTER   VII. 

THE   UNITED   STATES  ARE  SOVEREIGNS  YET. 

IN  every  step  of  progress  hitherto,  we  have  seen  that  "  the  united 
states,"  and  "  the  people  of  the  united  states,"  are  identical,  the 
people  being  named  in  the  instrument  constituting  the  federal  gov- 
ernment, and  delegating  to  it  the  powers  it  is  to  exercise,  as  New 
Hampshire,  Massachusetts,  New  York,  Pennsylvania,  Virginia,  and 
others ;  heing  provided  for  throughout  the  said  instrument  as  such 
states ;  and  being  recognized,  in  the  seventh  and  last  article,  solely 
in  the  character  of  states,  and  as  exclusively  ratifying,  and  thereby 
ordaining  and  establishing,  the  constitution,  and  t  giving  the  only  life 
and  authority  thereto. 

And  we  have  seen  that,  in  all  their  contemporaneous  explanations, 
the  leading  fathers  asserted,  nem.  con.,  that  the  bodies  of  people 
called  states  were  "  the  parties  to  the  compact,"  [  Hamilton,  Fed.  85], 
and  were  in  the  status  and  character  of  sovereigns  [Part  I.  Ch.  VII.]. 
No  change  in  the  said  states  was  ever  intended  or  thought  of;  for 
they  were  considered  to  be,  as  Hamilton  said,  the  "  essential  compo- 
nent parts  of  the  system,"  the  destruction  of  which  would  be  "  politi- 
cal suicide."  These  are  his  own  remarkable  expressions. 

We  have  seen  that  each  body  had  a  mind ;  that  government  is 
essentially  mental  and  functional  action ;  that  no  nation,  or  national 
society,  could  supplant  the  states,  because  forming  government  for  pre- 
formed society,  and  not  forming  society  itself,  was  the  subject  of 
action  in  1787;  that  the  sovereign  wills  that  ordained  the  constitu- 
tion had  to  subsist  through  the  making,  and  afterwards,  to  secure 
the  obedience  of  their  subjects  thereto;  and,  finally,  that  their  con- 
tinuance in  sovereign  individuality,  throughout  the  duration  of  the 
pact,  is  necessitated  by  article  V.,  in  which  it  was  agreed  by  "the 
parties  to  the  compact "  that  "  three  fourths  of  the  several  states  " 
shall,  by  "  ratification "  of  amendments  proposed  in  proper  form, 
amend  the  constitution. 

The  People,  as  States,  have  always  amended.  —  And  accord- 
ingly, throughout  their  federal  history,  and  in  pursuance  of  their 


326  SOVEREIGNTY  IN  THE  UNITED  STATES. 

federal  agreement,  the  states  have  amended  their  constitution,  when 
they  thought  "the  common  defence"  and  "general  welfare"  were 
not  well  enough  "  provided  for "  and  "  promoted."  This  power  of 
amendment  or  change  is  the  power  of  abolition  or  repeal ;  and  it 
shows  the  states,  i.  e.  the  collective  people,  to  be  above  their  federal 
"supreme  law." 

A  cursory  view  of  the  early,  as  well  as  the  later,  amendments  will 
corroborate  fully  the  view  here  taken,  and  settle  forever,  in  any 
thoughtful  reader's  mind,  the  supremacy  of  the  states,  whether  united 
or  single,  over  the  tripartite  agency  constituted  by  them  to  do  their 
federal  business. 

The  First  Twelve  Amendments.  —  Before  1865,  twelve  amend- 
ments had  been  adopted  by  the  states,  and  added  to  their  constitu- 
tion, according  to  the  mode  agreed  on  in  article  V.,  just  cited.  This 
power  of  amendment,  alone,  shows  that  the  states  are  supreme  above 
the  constitution  and  the  federal  government ;  and  that  they  are  not 
in  allegiance,  but  only  bound  by  self-imposed  obligations. 

Following  the  lead  of  Massachusetts,  all  the  principal  states,  when 
they  ratified,  insisted  upon  amendments ;  the  main  one  referring  to 
the  reservation  of  all  powers  not  delegated. 

Congress,  acting  as  the  agent  of  the  associated  states,  took  early 
action,  and  proposed  to  each  state,  for  her  adoption  or  rejection,  the 
first  ten  of  the  amendments.  Here  is  the  record;  the  italics  are 
mine  :  — 

"  Congress  of  the  United  States,  begun  and  held  at  the  city  of  New 
York,  March  4th,  1789. 

"  The  conventions  of  a  number  of  the  states,  having,  at  the  time  of 
their  adopting  the  constitution,  expressed  a  desire,  in  order  to  pre- 
vent misconstruction,  or  abuse  of  its  powers,  that  further  declaratory 
and  restrictive  clauses  should  be  added ;  and,  as  extending  the  ground 
of  public  confidence  in  the  government  will  best  ensure  the  beneficent 
ends  of  its  institution,  — 

"Resolved,  .  .  .  that  the  following  articles  be  proposed  to  the 
legislatures  of  the  several  states,  as  amendments  to  the  constitution  of 
the  united  states  ;  all  or  any  of  which  articles,  when  ratified  by  three 
fourths  of  the  said  legislatures,  to  be  valid  to  all  intents  and  purposes, 
as  part  of  the  said  constitution." 

Adoption  by  Separate  States.  —  The  said  ten  amendments  were 
ratified  as  follows  by  the  states,  viz.  :  By  New  Jersey,  Nov.  20, 
1789;  by  Maryland,  Dec.  17,  1789;  by  North  Carolina,  Dec.  22, 
1789  ;  by  South  Carolina,  Jan.  19,  1790  ;  by  New  Hampshire,  Jan. 
25,  1790 ;  by  Delaware,  Jan.  28,  1790  ;  by  Pennsylvania,  March  10, 
1790;  by  New  York,  March  10,  1790;  by  Rhode  Island,  June  15, 


THE  UNITED  STATES  ARE  SOVEREIGNS  YET. 


327 


1790  ;  by  Vermont,  Nov.  3,  1791  ;  by  Virginia,  Dec.  15,  1791.  The 
following  is  the  introduction  of  the  said  ten  articles,  as  promulgated 
by  congress  :  "  Articles  in  addition  to,  and  amendment  of  the  con- 
stitution of  the  United  States  of  America,  proposed  by  congress,  and 
ratified  by  the  legislatures  of  the  several  states,  pursuant  to  the  fifth 
article  of  the  original  constitution." 

In  1798  and  1804,  the  eleventh  and  twelfth  amendments  were 
established  ;  the  former  being  the  last  of  several  most  studied  and 
careful  endeavors  to  prevent  the  states  from  being  subordinated  and 
subject  to  coercion.  [Amendments  IX.,  X.,  and  XL] 

The  Later  Amendments.  —  About  seventy  years  after  the  first 
ten  were  adopted,  viz.  after  the  war  "  between  the  states,"  "  the  peo- 
ple of  the  united  states  "  again  amended,  adding  the  XIIL,  XIV., 
and  XV. ;  and  doing  it  in  the  mode  prescribed  by  their  aforesaid 
article  V.1 

i  AMENDMENT  OF  1865. 

Article  XIII.,  section  1. — Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime,  whereof  the  party  shall  have  been  duly  convicted,  shall  exist 
within  the  united  states,  or  any  place  subject  to  their  jurisdiction. 

Section  2.  —  Congress  shall  have  power  to  enforce  this  article,  by  appropriate  legis- 
lation. 

AMENDMENT  OF  1868. 

Article  XIV.,  section  1.  —  All  persons  born  or  naturalized  in  the  united  states,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  united  states,  and  of  the  state 
wherein  they  reside.  No  state  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  united  states;  nor  shall  any  state  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law ;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  its  laws. 

Section  2. — Provides  for  apportionment  of  representatives,  and  for  a  reduction  of 
them  in  proportion  to  the  numerical  reduction  of  voters. 

Sections.  —  Disqualifies  for  federal  office  those  who  have  taken  federal  oath,  and 
afterwards  aided  rebellion.  But  congress,  by  two-thirds  vote,  may  remove  disa- 
bility. 

Section  4.  —  Provides  that  the  validity  of  the  war  debt  shall  not  be  questioned.  But 
neither  the  united  states,  nor  an}'  state,  shall  assume  the  rebel  debt,  or  pay  for  the  loss  of 

Section  5.  —  The  congress  shall  have  power  to  enforce,  by  appropriate  legislation,  the 
provisions  of  this  article. 

AMENDMENT  OF  1870. 

Article  XV.,  section  1.  — The  rights  of  citizens  of  the  united  states  to  vote  shall  not 
be  denied  or  abridged  by  the  united  states,  or  by  any  state,  on  account  of  race,  color,  or 
previous  condition  of  servitude. 

Section  2.  —  The  congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 

Though  the  stating  of  facts,  and  not  commentary,  is  here  my  object,  I  must  say,  en 
passant,  that  these  amendments  simply  extend  civil  jurisdiction,  and  are  to  be  enforced 
by  the  usual  civil,  and  not  by  military,  coercion ;  the  latter  being  usable  in  the  state, 
against  "domestic  violence,"  only  on  call  of  the  legislature  thereof,  or,  when  it  "can- 
not be  convened,"  "of  the  executive."  Outside  of  this  narrow  and  to-be-strictly-con- 
strued basis,  even  a  Washington  would  have  been  perjured,  if  he  had  sent  coercing 
federal  soldiers  to  Pennsylvania,  whether  he  acted  before  or  after  the  amendment. 


328  SOVEREIGNTY  IN  THE  UNITED   STATES. 

So  that  we  find  that  the  states  named  in  the  pact,  and  those  they 
have  associated  with  them,  have  ratified  and  ordained  the  constitu- 
tion, and  all  the  amendments  thereof,  from  the  beginning  to  the 
present  day ;  and  that,  in  so  doing,  they  have  acted  functionally  in 
self-government,  with  their  respective  minds  and  wills.  In  other 
words,  the  constitution,  the  amendments  thereof,  and  all  the  authori- 
ties thereunder,  are  the  offspring  of  the  wills  of  the  states. 

The  conquerors  could  have  dictated  amendments,  and  even  provin- 
cialized or  dissolved  states  ;  but  they  chose  to  accept  the  submission  of 
the  seceders,  and  receive  them  into  the  same  old  association  of  equal 
commonwealths,  where  each  has  the  solemn,  sacred,  and  sworn  guar- 
anty of  all,  that  she  shall  have  "  a  republican  [and  not  a  provincial 
or  municipal]  form  of  government " ;  or,  in  other  words,  that  she 
shall  be  a  republican  commonwealth,  or  self-governing  people  in  all 
respects. 

We  see,  then,  that  the  people  pre-existed  as  states ;  they  were  rec- 
ognized and  provided  for  in  the  pact  as  states ;  they  ratified  and  or- 
dained as  states ;  they  have  always  amended  as  states ;  and  they 
now  exist  as  states,  the  self-same  political  entities  that  convened  in 
1787  to  plan  the  constitution,  and  that  subsequently  ratified  and 
ordained  the  same  by  their  respective  conventions,  according  to  article 
VII. 

When  and  how  did  a  State  lose  Sovereignty  ?  —  Of  course  Mr. 
George  Ticknor  Curtis,  the  most  respectable  of  the  "  school  "  under 
review,  and  the  representative  of  Story  and  Webster,  can  tell  when 
the  states  ceased  to  be  such,  and  became  provinces,  departments,  or 
counties  of  a  nation. 

He  has  a  chance  now  to  settle  the  great  American  question  for- 
ever. 

He  admits  fully  that  the  states  were  respectively  sovereign  and 
absolute,  before  the  present  federal  constitution  was  formed.  Let  us 
substantiate  this  admission  at  the  outset.  In  quoting  from  him  the 
italics  are  mainly  mine. 

"  When  the  revolution  was  fairly  accomplished,"  said  he,  the  "  state 
[of  Rhode  Island]  assumed  its  position  of  absolute  sovereignty ." 
[II.  Hist.  Const.  599.] 

Again  —  "  The  meeting  of  the  states  [to  form  a  constitution]  was 
purely  voluntary  :  they  met  as  equals,  and  they  were  sovereign  politi- 
cal communities,  whom  no  power  could  rightfully  coerce  into  a  change 
of  their  condition  ;  and  with  whom  such  a  change  must  be  the  result 
of  their  own  free  and  intelligent  choice."  [Ibid.] 

"  The  source  of  fundamental  law  is  found  in  the  sovereign  author- 
ity of  the  people  of  a  distinct  state,  to  order  the  political  conditions 


THE  UNITED  STATES  ARE  SOVEREIGNS  YET.  329 

of  society.  It  cannot  be  doubted  but  this  is  the  very  highest  of  all 
human  authority."  l  [His  letter  to  N.  Y.  World,  1869.] 

"  The  relations  of  the  individual  to  the  political  society  of  which  he 
is  a  member,  .  .  .  came  into  existence  as  soon  as  a  sovereign  Ameri- 
can state  was  formed  out  of  a  revolted  British  colony."  [Ibid.] 

Enough  :  these  strokes  of  his  potent  pen  quash  forever  his  magnum 
opus  —  "  the  History  of  the  Constitution."  They  exactly  contradict 
that  book,  and  fully  sustain  this.  His  admissions  derive  additional 
force,  not  only  from  his  ability  and  opportunity  for  knowledge,  but 
from  his  being  the  disciple  of  Story  and  Webster ;  from  his  represent- 
ing the  "school"  as  their  historiographer;  and,  finally,  from  his 
most  conspicuous  wish  to  discover,  under  the  present  federal  polity, 
some  evidence  of  the  revolutionizing  of  the  republics  into  one  grand 
state  —  some  sign  of  sovereignty  out  of  the  states,  and  in  a  nation 
comprising  them.  And  his  fatal  admissions  fully  accord  with  the 
treaty  declaration  of  the  first  federal  instrument  —  "  each  state  re- 
tains its  sovereignty  "  ;  with  each  state's  own  claim  of  equal  sove- 
reignty from  the  beginning  to  the  present ;  with  the  acknowledgment 
of  George  III.,  made  at  the  instance  of  the  states'  commissioners,  of 
the  sovereignty  of  each  by  name  ;  and  with  the  unquestionable  inde- 
pendence, sovereignty,  and  freedom  of  will,  with  which  the  states 
ordained  the  constitution,  and  acted  under  it  thereafter. 

A  few  words  more  as  to  Mr.  Curtis's  admissions  will  be  aidful.  To 
cap  the  climax  of  self-stultification,  as  it  were,  he  quotes,  with  high 
approval,  the  language  of  Judge  Wilson  in  the  ratifying  convention  of 
Pennsylvania,  that  "  it  has  been  incontrovertible  since  the  revolution, 
that  the  supreme,  absolute,  and  uncontrollable  power  is  in  the  people, 
before  they  make  a  constitution,  and  remains  in  them  after  it  is  made." 
Furthermore,  he  states  it  as  the  "  American  doctrine,"  "that  all  su- 
preme power  resides  originally  in  the  people  ;  and  that  all  governments 
are  constituted  by  them  to  be  the  depositaries  and  agents  of  that  power  " 
—  so  far,  of  course,  as  the  people  choose  to  impart  it.  "  And,"  contin- 
ues he,  "  the  people  can  withdraw  at  their  pleasure  "  the  power  "  de- 
posited with  a  state  government,"  and  "  vest  it  in  another  class  of 
agents  [the  federal  ones],  leaving  the  authority  of  the  former  undi- 
minished,  except  as  to  the  particular  objects  of  the  powers  with- 
drawn." 

Now,  let  us  come  down  to,  and  consider,  the  single  point  of  a 

1  Mr.  C.  repeats  that  "we  can  go  to  nothing  that  is  higher  [than  state  authority],  and 
at  the  same  time  human."  But  he  proceeds  then  to  develop  the  idea  of  a  second  so- 
ciety being  formed,  supplanting,  or  rather  absorbing,  the  first;  and  of  a  government 
dominating  the  states  that  created  it ;  but  he  only  succeeds  in  making  his  fallacy  more 
and  more  conspicuous  as  he  proceeds. 


330  SOVEREIGNTY  IN  THE   UNITED   STATES. 

state's  losing,  being  divested  of,  or  alienating  sovereignty;  and,  for 
use  in  illustration,  let  us  make  a  row  of  symbolical  figures,  to  repre- 
sent a  given  state  (say  Rhode  Island)  at  the  different  dates  indicated, 
—  each  figure  with  a  star  in  it,  to  represent  sovereign  will,  as  fol- 
lows :  — 

SSSSSSSESSS 

1776    1786    1796   1806   1816    1826    1836   1846   1856   1866   1876 

Of  course,  so  stupendous  a  change  as  desovereignizing  a  state,  and 
making  a  subjugated  province  or  county  of  it,  must  be  marked  by 
more  or  less  of  easily  citable  facts  of  history,  or  documents ;  and 
Mr.  Curtis,  whose  researches  have  been  most  extensive,  should 
be  asked  for,  and  required  to  point  out,  the  evidences  of  such 
change,  so  that  we  can  admit  or  controvert  such  momentous  aver- 
ment. Let  us  know  the  precise  time  when  the  name,  geography, 
people,  organism,  or  inherent  political  authority  of  any  given  common- 
wealth underwent  that  essential  and  radical  change  of  state  to  prov- 
ince or  county,  and  from  sovereignty  to  subordination,  which  he 
teaches  in  his  works. 

At  what  epoch  should  the  star  be  left  out  of  the  above  illustration  1 
Let  us  have  the  facts  proving  the  change,  so  that  they  can  be  ex- 
amined. 

Admissions  of  Everett,  J.  Q.  Adams,  and  "Webster.  —  These 
other  most  distinguished  sons  of  Massachusetts,  who  at  times  per- 
verted her  faith  and  endangered  her  statehood,  also  prove  by  forceful 
admissions  alike  their  amusing  and  confusing  inconsistency,  and  the 
doctrine  of  this  book. 

EDWARD  EVERETT  wrote  to  Jefferson,  in  1826,  that  "the  constitu- 
tion of  the  united  states  is  a  compact  of  independent  nations"- 
this  being  also  the  view  of  Jefferson.  [J.'s  Works,  Vol.  VII.]  To 
Washington  Hunt  he  wrote,  on  May  29,  1860  :  "  Our  union  of  co- 
equal sovereign  states  requires,  as  its  basis,  the  harmony  of  its  mem- 
bers, and  their  voluntary  co-operation  in  its  organic  functions." 

JOHN  QUINCY  ADAMS  said,  in  his  discourse  on  the  constitution, 
delivered  in  1839:  "To  the  people  alone  is  there  reserved  as  well 
the  dissolving  as  the  constituent  powers,  .  .  .  and  the  people  of 
each  state  .  .  .  have  the  right  to  secede  from  the  confederated 
union." 

DANIEL  WEBSTER,  as  heretofore  shown  (p.  212),  called  our  union 
"  the  American  confederacy,"  said  that  it  was  voluntary,  and  that 
"  the  only  parties  to  the  constitution  contemplated  by  it  originally 


THE  UNITED  STATES  ARE   SOVEREIGNS  YET.  331 

were  the  thirteen  confederated  states,"  and  declared  that  the  indi- 
vidual states  had  "the  exclusive  possession  of  sovereignty."  And,  in 
Annapolis  in  1852,  just  before  his  death,  he  said,  as  to  the  states,  that 
"  it  never  entered  into  their  conceptions  that  they  were  to  consolidate 
themselves  into  one  government,  that  they  were  to  cease  to  be  Mary- 
land and  Virginia,  Massachusetts  and  Carolina.  .  .  .  The  objects  of 
the  common  defence  and  the  general  welfare,  and  afterwards  the 
objects  connected  with  commerce  and  revenue,  .  .  .  were  all  they 
adopted  as  principles  and  objects  of  union  and  association,  nothing 
beyond  that.  .  .  .  Gentlemen,  /  hope,  for  one,  never  to  see  the  original 
idea  departed  from" 

WILLIAM  H.  SEWARD,  at  Cleveland,  in  1844,  said:  "This  union 
must  be  a  voluntary  one,  and  not  compulsory.  A  union  upheld  by 
force  would  be  a  despotism."  Twenty-one  years  thereafter,  viz.  Octo- 
ber 20,  1865,  in  a  most  elaborate  address  on  the  then  condition  of 
things,  and  speaking  in  direct  reference  to  possible  claims  of  change 
in  our  system  by  the  war  or  otherwise,  he  said  :  "  This  absolute  exist- 
ence of  the  states,  which  constitute  the  republic,  is  the  most  palpable 
of  all  the  facts  which  the  American  statesman  has  to  deal  with.  .  .  . 
In  a  practical  sense,  at  least,  the  states  were  before  the  American 
union  was.  .  .  .  Our  federal  republic  exists,  and  henceforth  and  for- 
ever must  exist,  through  ...  the  combination  of  these  several  free, 
self-existing,  stubborn  states.  .  .  .  They  are  living,  growing,  majestic 
trees,  whose  roots  are  widely  spread  and  interlaced  within  the  soil, 
and  whose  shade  covers  the  earth." 

And  even  the  PHILADELPHIA  CONVENTION  of  1866  admitted  that  no 
change  of  the  constitution  of  the  government,  or  of  the  character  and 
authority  of  the  states,  had  been  made  by  the  war ;  as  did  the  cen- 
tennial orator,  WILLIAM  M.  EVARTS,  in  his  address  at  Philadelphia, 
July  4,  1876. 

Sophists  always  stultify  Themselves.  —  So  it  is  with  all  the 
leading  consolidation  advocates.  Truth's  wand,  like  Ithuriel's  spear, 
makes  each  in  turn  helpless  and  pitiable,  —  the  paralysis  being  sent 
down  his  spinal  marrow  by  his  own  hand  and  pen.1  All  sophists 
must,  at  times,  impulsively  tell  truths,  despite  their  habitudes  of  art 
and  craft.  Truth  and  honesty  are  natural,  and  they  often  "  out," 
while  deceit  and  fraud  are  asleep,  or  "off  watch." 

The  above  expressions  of  the  sophists  precisely  accord  with  the  his- 
tory and  records  of  the  country,  and  with  the  fathers,  as  cited  in  Part 
L,  Ch.  VII. 

1  "Him  thus  intent,  Ithuriel  with  his  spear 
Touched  lightly,  for  no  falsehood  can  endure 
Touch  of  celestial  temper;  but  returns 
Of  force  to  its  own  likeness." 


332  SOVEREIGNTY  IN  THE  UNITED  STATES. 

The  Political  Philosophers.  —  The  two  greatest  of  the  age  speak 
as  follows :  — 

LORD  BROUGHAM  says:  "It  is  plainly  impossible  to  consider  the 
constitution  "  as  anything  "  other  than  a  treaty  "  forming  a  "  federacy 
of  states." 

DE  TOCQUEVILLE  says  the  union  is  a  "  voluntary  agreement  of  the 
states,"  which  have  respectively  not  "  forfeited  their  nationality,"  and 
become  "  one  and  the  same  people." 

JOHN  STUART  MILL  writes  of  it  in  the  same  way. 

VATTEL  and  MONTESQUIEU  forecasted  our  polity  as  follows  :  — 

Said  the  former :  "  Several  sovereign  and  independent  states  may 
unite  themselves  together  by  a  perpetyal  confederacy,  without  each 
in  particular  ceasing  to  be  a  perfect  state.  They  will  form  together 
a  federal  republic."  "  The  sovereignty  of  each  member,"  continues 
he,  "  is  preserved,"  though  there  is  "  constraint  on  the  exercise  of  it, 
in  virtue  of  voluntary  engagements,"  i.  e.  the  members  bind  themselves 
to  voluntary  functions  in  the  union. 

Said  the  latter,  describing  what  he  calls  the  "confederate  republic," 
or  the  " republic  of  republics " :  This  is  "a  convention  [i.  e.  a  com- 
ing together],  by  which  several  small  states  agree  to  become  members 
of  a  larger  one,  which  they  intend  to  form.  It  is  an  assemblage  of 
societies  that  constitute  a  new  one  [which  is  his  'republic  of  repub- 
lics '],  capable  of  increasing  by  new  associations.  .  .  .  The  confederacy 
may  be  dissolved  and  the  confederates  preserve  their  sovereignty." 
He  further  remarks  that,  "  as  this  government  is  composed  of  small 
republics,  it  enjoys  the  internal  happiness  of  each,"  while  by  "the 
association,"  it  has  "  all  the  advantages  of  large  monarchies." 

Issues  of  Fact  tendered.  —  Passing  by  the  facts  that  the  bodies 
of  people  were  called  states  in  1776  and  1787,  in  the  then  meaning  of 
the  word,  and  in  the  same  sense  as  Spain  and  France  were,  and  that 
sovereignty  was  that  which  alone  distinguished  them  from  provinces 
or  counties ;  passing  by,  too,  the  fact  that  these  bodies  were  not  cre- 
ated, or  provided  for,  by  any  law  or  constitution,  as  are  counties  or 
other  subdivisions  of  a  state,  but  that  each  pre-existed  as  an  organ- 
ized political  being,  absolutely  without  a  superior  on  earth,  and  the 
peer  of  every  other  state,  and  hence  sovereign ;  passing  by,  finally,  the 
fact  that  each  was  declared  and  guaranteed  by  all  to  be  sovereign,  and 
was  acting  as  a  sovereign,  throughout  the  framing  and  ordaining  of 
the  constitution  in  1787-90,  let  us  respectfully,  but  defiantly,  tender 
decisive  issues,  and  throw  down  the  gage.  If  the  pros  are  truths, 
must  not  the  cons  be  falsehoods  ? 

1.  The  people  of  the  united  states  politically  exist,  and  are  capable 
of  political  action,  only  as  republican  commonwealths  called  states. 


THE  UNITED  STATES  ARE  SOVEREIGNS  YET.  333 

2.  Each  state  is  a  distinct  and  independent  body  of  people,  with 
its  own  name,   inhabitants,  geography,  and  political  organism,   and 
is  as  separate  and  complete  in  existence  as  a  man,  an  island,  or  a 
star. 

3.  Each  of  these  commonwealths  has  a  mind,  which  it  exercises  in 
all  acts  of  government,  and  it  gathers  information,  reasons,  judges, 
and  wills,  as  to  defence  and  welfare,  just  as  a  man  does. 

4.  The  action  of  this  mind,  in  constituting  and  administering  gov- 
ernment, is  functional,  just  as  the  self-governing  action  of  a  man's 
mind  is. 

5.  Hence,  as  separate  minds  cannot  unite  by  welding  themselves, 
but  must  associate  and  co-operate,  the  union  of  states  called  "  the 
united  states  "  is  necessarily  a  federation  or  league  of  states. 

The  denial  of  these  propositions  is  untruth.  The  "  moral  persons  " 
do  yet  exist  intact,  and  their  continued  existence  is  essential  to  the 
continuance  of  American  institutional  liberty. 

"Free,  Sovereign,  and  Independent."  —  This  phrase,  so  often 
used  unqualifiedly  in  our  history,  as  to  the  status  of  a  commonwealth 
[e.  g.  in  the  constitution  of  Massachusetts ;  first  federal  constitution ; 
treaty  of  1783;  act  of  Virginia,  ceding  northwestern  territory;  ordi- 
nance of  1787  as  to  same;  several  state  constitutions],  means  that 
she  is  "/ree  "  in  mind,  to  think  and  determine  as  she  pleases ;  "  sove- 
reign "  in  will,  and  beyond  all  earthly  control ;  and  "  independent  "  in 
organism  and  existence ;  so  that,  without  coercion,  any  other  union 
or  association  than  a  voluntary  one  is  a  moral  and  political  impos- 
sibility. 

Nay,  more,  the  word  "  state,"  as  we  have  seen,  means,  when  ap- 
plied by  the  fathers  and  the  constitution  to  New  York  or  Delaware, 
precisely  what  it  does  when  it  refers  to  England  or  France.  "  When 
the  constitution  uses  well-known  words,"  says  Webster,  it  uses  them 
"  in  their  well-known  sense."  [See  Constitution,  Art.  III.,  §  2  ;  Amend- 
ment XL] 

The  States  not  under  Control  of  the  Government.  —  They  alone 
have  inherent  and  original  right  of  existence  and  authority.  The 
institution  called  "the  government"  has  no  right  of  control  over 
them,  because  it  springs  from  their  will,  and  has  only  the  authority 
they  delegate ;  besides  that,  it  is  personally  composed  of  their  sub- 
jects, and  must  use  their  own  men  and  means  to  execute  coercion 
upon  them. 

As  heretofore  quoted  (p.  37),  Daniel  Webster  declared  that,  in 
North  America,  sovereignty  is  ever  in  the  people,  and  never  in  the 
government.  And  George  T.  Curtis  says  :  "  The  American  doctrine 
is,  that  all  supreme  power  resides  originally  in  the  people,  and  that 


334  SOVEREIGNTY  IN  THE   UNITED  STATES. 

all  governments  are  the  depositaries  and  agents  of  that  power."     [Hist. 
Constitution.] 

But  "  Change  "  by  Usurpation  threatens  us.  —  I  submit,  in  con- 
clusion of  this  chapter,  that  the  t(  change  "  so  persistently  asserted  by 
Story,  Webster,  and  the  federal  supreme  court,  from  a  federation  to 
another  system,  neither  was  nor  could  be  made ;  but  that,  through 
perversion,  fraud,  and  perjured  usurpation,  the  factitious  and  fraudu- 
lent change  is  coming  over  us,  that  Burke,  as  heretofore  quoted, 
speaks  of  —  a  "change  from  a  state  of  procuration  and  delegation  to  a 
course  of  acting  as  from  original  power,  the  very  way"  continues  he, 
"  in  which  all  the  free  magistracies  of  the  world  HAVE  BEEN  PERVERTED 

FROM    THEIR   PURPOSES  "  ! 


CHAPTEE  VIII. 

THE  STATES  ACT  AS  SOVEREIGNS  IN  THE  UNION. 

JUDGING  from  New  York's  declarations  and  action,  under  our  fed- 
eral polity,  she  may  well  be  called,  in  a  second  sense,  "  the  em- 
pire state  " ;  for  surely  no  power  of  earth  did  ever  more  imperially 
assert  herself,  or  act  with  more  absolute  sovereignty,  than  she  has 
done  in  the  federal  union.  Indeed,  her  whole  history  and  record, 
and  all  her  action  —  as  will  be  seen  —  consist  with  and  support  the 
doctrine  of  this  book. 

I  have  already  illustrated,  in  the  case  of  Pennsylvania  [see  ch.  I.  of 
this  Part],  the  transition  from  colonial  or  provincial  dependence  to 
statehood  ;  and  shown  that  it  is  precisely  the  acquisition  of  "freedom, 
sovereignty,  and  independence,"  that  distinguishes  a  state  from  a 
province  or  other  dependency. 

New  York's  Record  on  the  Subject.  —  She  had  been  an  organ- 
ized society,  governed  with  entire  separateness  from  every  other,  for 
over  one  hundred  years,  when  she  established  her  first  constitution, 
in  the  year  1777.  She  then  held  a  convention  for  this  purpose 
exclusively  elected  and  empowered  by  herself.  Asserting  and  acting 
with  supreme  authority,  she  then  declared  herself  to  be  the  sup- 
planter  of  the  whole  British  sovereignty  —  king,  lords,  and  commons. 
That  constitution  —  after  recounting  the  steps  towards  sundering  the 
ties  of  New  York  to  Britain  —  introduces  the  declaration  of  indepen- 
dence as  part  of  her  fundamental  law.  In  that  declaration,  her  dele- 
gates, and  those  of  her  sisters  in  congress  assembled,  declared  that 
their  thirteen  constituents  are  of  right  "  free  and  independent  states  "; 
are  absolved  from  all  political  connection  with,  and  allegiance  to,  the 
British  crown;  and  "have  full  power,"  as  "free  and  independent 
states,  to  levy  war,  conclude  peace,  contract  alliances,  establish  com- 
merce, and  do  all  other  acts  and  things  which  independent  states  may 
of  right  do."  This  could  be  predicated  of  each  state  only,  because 
there  could  be  no  mind  to  do  such  things  except  in  the  "moral  per- 
sons "  then  existent,  and  by  name  designated.  We  must  keep  it  in 
view,  that  all  affirmations  in  the  history  and  records  of  these  matters 


336  SOVEREIGNTY  IN  THE  UNITED   STATES. 

refers  to  certain  entities  —  political  bodies  —  "  moral  persons,"  that 
then  included  all  the  people  and  covered  all  the  territory,  leaving 
thereout  no  powers,  people,  or  acres,  to  make  a  nation  of;  and  that 
these  bodies,  which  have  existed  through  all  our  history,  do  exist  now, 
as  distinct  as  trees  in  a  grove,  islands  in  the  sea,  stars  in  a  group,  or 
men  in  a  corporation.  These  ideas  once  held,  we  require  proof  of  the 
end  ©r  change  of  such  entities.  The  onus  is  on  the  "school." 

Here  is  the  proper  place  to  brand  a  certain  falsehood,  nowadays 
commonly  taught,  viz.,  that  the  understanding  was,  that  the  nascent 
states  were  to  be  "  sovereign,  free,  and  independent "  only  as  united 
states,  —  each  and  all  the  states  being  subordinate  to  The  United 
States,  or  the  nation.  If  such  understanding  ever  existed,  it  would 
have  been  done  away  with  by  the  second  article  of  the  confederation 
of  1778,  declaring  that  "each  state  retained  its  sovereignty."  But  it 
is  entirely  false,  as  New  York  herself  shows,  in  the  following  con- 
tinuation of  the  said  instrument :  — 

"And  whereas,  having  taken  this  declaration  [of  independence] 
into  their  most  serious  consideration,  [they]  did,  on  the  9th  day  of 
July  last  past,  unanimously  resolve,  that  the  reasons  assigned  by  the 
continental  congress  for  declaring  the  united  colonies  free  and  inde- 
pendent states,  are  cogent  and  conclusive,  and  that  while  we  lament 
the  cruel  necessit}7",  ...  we  approve  the  same,  and  will,  at  the  risk 
of  our  lives  and  fortunes,  join  with  the  other  colonies  in  supporting 
it.  By  virtue  of  which  several  acts,  declarations,  and  proceedings, 
mentioned  and  contained  in  the  afore-recited  resolves  of  the  general 
congress  of  the  united  American  states,  and  of  the  congresses  or  con- 
ventions of  this  state,  all  power  whatever  therein  [i.  e.  in  the  state] 
hath  reverted  to  the  people  thereof  [*'.  e.  of  the  state],  and  this  con- 
vention hath  by  their  suffrages  and  free  choice  been  appointed,  and, 
among  other  things,  authorized  to  institute  and  establish  such  a  gov- 
ernment as  they  shall  deem  best  calculated  to  secure  the  rights  and 
liberties  of  the  good  people  of  this  state.  .  .  . 

"  1st.  This  convention,  therefore,  in  the  name  and  by  the  authority 
of  the  good  people  of  this  state,  doth  ordain,  determine,  and  declare  : 
That  no  authority  shall,  on  any  pretence  whatever,  be  exercised  over 
the  people  or  members  of  this  state,  but  such  as  shall  be  derived  from 
or  granted  by  them" 

"  All  powers  whatever  "  "  reverted  to  the  people  "  of  New  York  ! 
and  "  no  authority,"  "  on  any  pretence  whatever,"  was  to  "  be  exer- 
cised over  the  people  or  members  of  this  state,"  but  their  own  ! l 

1  President  Lincoln  —misled  by  New  York  and  Massachusetts  expounders  —  said  the 
union  made  New  York  a  state,  and  that  she  had  no  status  or  rights  whatever,  except 
what  the  national  constitution  reserved  to  her.  Professor  Jameson  of  Chicago  may 


THE  STATES  ACT  AS  SOVEREIGNS  IN  THE  UNION.  337 

New  York  now  Sovereign.  —  We  shall  now  see  that  New  York 
retains  this  very  self-assertion  in  full  force  to-day,  and  holds  herself 
to  be  the  absolute  sovereign,  who  gives  the  federal  agency  its  sole  ex- 
istence and  authority  on  her  domain,  and  uses  it  and  its  means  as  her 
instruments,  and  for  her  purposes ;  and  that  the  said  government  has 
no  right  to  exist,  no  right  to  act,  no  jurisdiction  or  control  over  citizens, 
and  no  right  to  hold,  administer,  or  use  property  —  even  for  federal 
purposes  —  without  the  sovereign  authority,  the  grant,  and  the  per- 
mission of  that  state,  and  subject  to  her  conditions  and  her  defeasance. 

Through  her  deputized  subjects  in  federal  convention,  she  assisted 
in  devising  the  federal  compact.  In  her  own  home  convention  she 
carefully  examined  it,  asking  herself  if  it  was  to  her  interest,  safety, 
and  welfare  to  adopt  it;  and  finally,  after  due  deliberation,  her  judg- 
ment barely  inclined  her  will  to  make  it  her  "  supreme  law,"  and  to 
command  her  "  members  "  (i.  e.  her  citizens  and  subjects)  to  obey  it. 
Barely,  I  say,  for  the  majority  in  her  convention  was  only  three,  after 
a  long  and  excited  contest. 

Her  ordaining  words  were  as  follows  :  "  We,  the  delegates,  .  .  . 
in  the  name  and  behalf  of  the  people  of  the  state  of  New  York,  do 
by  these  presents  assent  to  and  ratify  the  said  constitution." 

Hereby  the  only  vitality  and  validity  the  said  compact  ever  had, 
or  could  have,  in  the  state  of  New  York,  was  given.  Thenceforward, 
her  subjects  were  to  obey  the  federal  agency  by  her  command  ; 
for  standing  then  in  her  imperial  law  was  the  declaration,  that  "  no 
authority"  but  her  own  was  to  "be  exercised  over"  her  " people  or 
members,"  "  on  any  pretence  whatever." 

What  say  Jay,  Hamilton  and  Livingston  ?  —  These  greatest  sons 
of  New  York  were  most  influential  in  causing  her  to  federalize  her- 
self. They  probably  knew  as  much  of  the  character  of  the  proposed 
system,  and  the  intent  of  New  York,  as  any  of  her  later  "  expoun- 
ders "  and  so-called  "  historians." 

JAY  said  "a  union  of  states"  was  being  formed,  and  that  the  fed- 
eral functionaries  were  "  agents  and  overseers  of  the  people."  J 

have  taught  him  —or  vice  versa.  The  said  professor  also  teaches,  that  in  making  their 
constitutions,  and  governing  themselves,  the  states  perform  for  the  nation,  and  under  its 
authority,  delegative  functions :  and  it  is  more  than  intimated  by  some,  and  perhaps 
by  himself,  that  they  have  done  so  from  the  beginning.  It  is  a  waste  of  time,  however, 
even  to  notice  such  contentions.  He  and  Professor  Mansfield  of  Cincinnati  more  than 
intimate  that  states  are  unnecessary  except  in  the  capacity  of  counties. 

1  Contrast,  now,  these  views  of  the  first  Chief  Justice  and  his  compatriots  with  those 
of  the  present  Chief  Justice,  who  dires  to  say  of  the  same  constitution,  in  the  very  capi- 
tal of  his  leagued  sovereigns,  that  he  and  the  other  federal  ephfmera  (Irs  co-agents  and 
co-servants)  are  supreme  over  the  said  sovereigns,  i.  e.  over  the  states  as  states  —  in 
consonance  with  the  treasonable  declaration  of  the  Philadelphia  convention  of  1866, 
that  the  government  has  absolute  supremacy"  over  allegiant  states. 

22 


338  SOVEREIGNTY  IN  THE  UNITED   STATES. 

HAMILTON  said  the  union  was  "  a  confederacy,"  the  constitution  a 
"  compact,"  the  states  the  "  parties  to  the  compact,"  and  "  the  people 
of  this  state  [New  York]  the  sovereigns  of  it."  And  CHANCELLOR 
LIVINGSTON  said  the  constitution  provides  for  "  a  league  of  states," 
thus  forming  a  "  federal  republic  "  - —  the  very  idea  of  Montesquieu, 
heretofore  referred  to.  For  a  more  extended  citation  of  Jay  and 
others  see  supra,  p.  92,  et  seq. 

No  dissent  is  anywhere  found.  Her  greatest  men  asserted  her  and 
her  sisters  to  be  "  a  confederacy  "  of  sovereigns  —  a  league  of  states  — 
each  the  highest  authority  on  earth.  They  considered  the  constitu- 
tion to  be  the  breath  of  the  said  monarchs,  and  "the  government" 
their  creation,  agent,  and  servitor.  How  could  it  be  otherwise  when 
these  sovereigns  created  its  existence,  "  delegated  "  to  it  all  of  its  "  pow- 
ers," and  chose  and  commissioned  their  members  and  subjects  to  ad- 
minister it  1  In  the  nature  of  things,  their  union,  as  associated  bodies 
or  "  united  states,"  was  impossible  except  by  federation.  The  "  moral 
persons,"  each  with  her  will,  must  act,  and  must  survive  the  act. 

She  now  Claims  Sovereignty  over  People  and  Soil.  —  After  de- 
claring her  boundaries  in  her  constitution,  New  York  says  :  "  The 
sovereignty  and  jurisdiction  of  this  state  extend  to  all  places  within 
the  boundaries  thereof,  as  declared  in  the  preceding  title ;  but  the 
extent  of  such  jurisdiction  over  places  that  have  been  or  may  be  ceded 
to  the  United  States  shall  be  qualified  by  the  terms  of  such  cession." 
[See  present  constn.  of  N.  Y.] 

She  also  declares  it  to  be  "  the  duty  of  the  governor  and  of  all  sub- 
ordinate officers  of  the  state,  to  maintain  and  defend  its  sovereignty 
and  jurisdiction."  [I.  N.  Y.  Rev.  Stat.  chap,  i.,  tit.  2.  §§  1,  2.] 

She  also  declares,  in  as  autocratic  a  manner  as  Kaiser  William 
could  possibly  do,  —  declaring  to-day  what  she  declared  at  first,  — 
that  "  no  authority  can,  on  any  pretence  whatever,  be  exercised  over 
the  citizens  of  this  state,  but  such  as  is,  or  shall  be,  derived  from,  and 
granted  by,  the  people  of  this  state."     [Ibid.  ch.  iv.  §1.] 

Mark  the  words,  "  citizens  of  this  state " ;  and  to  show  how  com- 
pletely this  harmonizes  with  the  federal  constitution,  and  agrees  with 
the  theory  of  this  work,  see  articles  III.  §  2,  IV.  §  2,  and  amendment 
XI.  of  the  federal  pact ;  and  article  I.  §  1  of  her  own  constitution, 
ordained  in  1846  —  the  latter  reading  as  follows:  "No  member  of 
this  state  shall  be  disfranchised,  or  deprived  of  any  of  the  rights  or 
privileges  secured  to  any  citizen  thereof,  unless  by  the  law  of  the  land 
or  the  judgment  of  his  peers." 

Note  that  she  calls  "the  people"  the  "members  of  this  state" 
(just  as  the  federal  pact  calls  "  the  people  "  the  "  citizens  of  different 
states  "),  assumes  to  be  their  sovereign,  and  to  be  obliged  to  protect 


THE  STATES  ACT  AS  SOVEREIGNS  IN  THE  UNION.  339 

their  liberty  and  rights.  "  The  people  "  are  New  York,  i.  e.  a  com- 
monwealth so  named,  which  is  formed  by  social  compact,  wherein 
each  member  agrees  to  be  governed  by  all.  Precisely  thus  does 
Massachusetts  set  forth  this  republican  social  compact  (see  the  pre- 
amble to  her  constitution) ;  and,  consistently,  she  calls  her  citizens 
"subjects  of  the  commonwealth."  And  even  the  federal  supreme 
court  recently  declared  (in  the  Cruikshank  case,  1876),  that  "citi- 
zens are  members  of  the  political  community  to  which  they  belong." 
Hence,  under  the  concurrent  declarations  of  Queens  New  York  and 
Massachusetts,  to  say  nothing  of  the  united  sovereigns  and  their  su- 
preme court,  we  may  consider  "  member,"  "  citizen,"  and  "  subject " 
as  convertible  terms ;  also,  that  the  only  allegiance  of  the  citizen  is 
due  to  the  society  of  which  he  is  an  integral  part ;  also,  that  the  only 
tie  of  allegiance  in  "  the'  united  states  "  is  the  social  compact,  especi- 
ally as  no  king,  prince  or  feudal  lord  can  be  found  there.  At  all 
events,  government  in  republics,  being  created,  delegative,  and  vicari- 
ous, and  being  administered  solely  by  citizens  and  subjects  of  the 
sovereigns,  it  cannot  possibly  be  the  object  of  allegiance  or  treason,  as 
will  be  duly  and  more  lucidly  shown.  Treason  is  a  crime  against  the 
state  or  the  states. 

Uncle  Sam  stands  in  New  York  only  on  her  Grant.  —  Seeing 
the  pronounced  absolutism  of  New  York,  we  cannot  be  surprised  to 

ind  the  federal  agency  under  her  queenly  thumb.  Indeed,  she  never 
seems  to  tire  of  reminding  that  agency,  that  it  is  the  "  business  "  of 
icr  and  her  sisters  that  is  done,  and  that  those  who  "receive  that 

usiness  to  manage  "  do  it  (as  Jay  above  says),  "  not  for  themselves, 

>ut  as  the  agents  and  overseers  of  the  people." 
Nay,  more,  she  over  and  over  again  declares  or  implies  —  as  we 

lall  see  —  that  the  said  limited  agency,  calling  itself  "  the  govern- 

iciit,"  can  have  no  foothold  or  jurisdiction  on  her  soil,  except  with 

ler  permission,  and  on  her  conditions.     Greek  and  Roman  proprietors, 
leagued  for  joint  government,  and  protection  of  their  estates  and 

imilies,  could  not  have  had  a  more  masterly  and  owner-like  control 
)ver  their  owned  administrators,  than  these  associated  moral  persons 

tiled  the  states  have  over  their  administering  and  managing  sub- 
its.     And  it  is  preposterous  to  suppose  that  these  agents,  who  are 
ippointed  by  the  state  for  her  purposes,  who  have  only  her  powers, 

nd  are  her  subjects,  should,  against  her  consent,  and  for  some  outside 
mthority  enter  of  right  on  her  soil,  occupy  her  strong  positions, 
and  gain  all  points  of  vantage,  so  as  to  be  able  to  encompass  her  attack 
and  destruction,  instead  of  her  "  defence  and  safety." 

New  York  on  the  Lordship  of  the  Soil.  —  She  considers  that  all 
rights  and  powers  spring  from  the  commonwealth,  and  fall  thereto 


340  SOVEREIGNTY  IN  THE   UNITED  STATES. 

when  they  lapse.  As  to  the  soil,  she  says  in  Article  I.  §  2,  of  her 
present  constitution :  "  The  people  of  this  state,  in  their  right  of 
sovereignty,  are  deemed  to  possess  the  original  and  ultimate  property 
in  and  to  all  lands  within  the  jurisdiction  of  this  state  ;  and  all  lands, 
the  title  to  which  shall  fail  from  a  defect  of  heirs,  shall  revert  or  es- 
cheat to  the  people." 

Virginia  in  her  constitution  expresses  it  as  follows :  "  All  es- 
cheats, penalties  and  forfeitures,  heretofore  going  to  the  king,  shall  go 
to  the  commonwealth." 

Judge  Kent  thus  states  the  American  and  republican  idea,  in  IV. 
Com.  424  :  "  The  state  steps  in  place  of  the  feudal  lord,  by  virtue 
of  its  sovereignty,  as  the  original  and  ultimate  proprietor  of  all  the 
lands  within  its  jurisdiction." 

So  we  see  that  New  York  now  considers  herself  as  having  upon  her 
soil  displaced  the  former  sovereignty,  that  of  Britain.  And,  consist- 
ently, she  declares  that  "  all  grants  of  land  and  charters  of  incorpora- 
tion made  by  the  king  of  Great  Britain,  or  by  his  authority,  after 
October  14,  1775,  shall  be  null  and  void."  [Const.  N.  Y.] 

The  Conditions  Federal  Foothold  is  Granted  on.  —  It  will  now 
be  seen  that  the  foothold  of  the  federal  agency  in  New  York  is  held 
under  her  grant,  and  solely  on  the  conditions  she  imposes.  Nay, 
more,  the  said  agency  accepts  those  conditions,  in  behalf  of  its 
principals,  the  united  states. 

On  this  point,  please  note,  in  the  first  place,  the  clause  of  Art.  I., 
§  8,  of  the  federal  pact,  providing  that  the  congress  shall  legislate 
over  such  ten-mile-square  district  as  shall  be  "  ceded  by  a  particular 
state"  and  accepted  by  congress,  for  the  seat  of  the  government ;  and 
shall  "  exercise  like  authority  over  all  places  purchased  by  the  consent 
of  the  legislature  of  the  state,  in  which  the  same  shall  be,  for  the  erec- 
tion of  forts,  magazines,  arsenals,  dockyards,  and  other  needful  build- 
ings;" note  also  the  act  of  congress  of  March  20,  1794,  §  3:  "It 
shall  be  lawful  for  the  president  of  the  united  states  to  receive  from 
any  state  (in  behalf  of  the  united  states)  a  cession  of  the  lands  on 
which  any  of  the  fortifications  aforesaid  .  .  .  may  be  erected,"  etc. 
This  referred  to  sites  of  forts,  arsenals,  etc.,  generally. 

The  action  of  New  York  in  the  matter  is  shown  in  one  hundred  and 
fifty-seven,  or  more,  different  acts,  to  be  found  in  the  revised  statutes  of 
1859,  in  which  she  granted  to  the  united  states,  as  to  any  other  owner, 
as  many  different  tracts  of  land,  under  conditions  which  she,  as  a  sove- 
reign grantor,  imposes,  and  which  are  in  every  case  accepted.  The 
following,  which  is  in  the  act  ceding  the  use  and  jurisdiction  of  lands 
adjoining  the  Brooklyn  navy-yard,  is  a  fair  specimen  :  "  The  united 
states  are  to  retain  such  use  and  jurisdiction  so  long  as  said  tract 


THE  STATES  ACT  AS  SOVEREIGNS  IN  THE  UNION.  341 

shall  be  applied  to  the  defence  and  safety  of  the  city  and  port  of  New 
York,  and  no  longer."  "  But  the  jurisdiction  hereby  ceded,  and  the 
exemption  from  taxation  herein  granted,  shall  continue,  in  respect  to 
said  property,  and  to  each  portion  thereof,  so  long  as  the  same  shall 
remain  the  property  of  the  united  states,  and  be  used  for  the  purpose 
aforesaid,  and  no  longer." 

So  with  the  federal  "jurisdiction  over  ...  a  tract  in  the  town  of 
Watervliet,"  the  site  of  the  great  arsenal :  "  The  united  states  are  to 
retain  suck  jurisdiction  so  long  as  the  said  tract  shall  be  applied  to  the 
use  of  providing  FOR  THE  DEFENCE  AND  SAFETY  OF  THE  SAID  STATE, 
and  no  longer." 

Further  quotation  is  unnecessary.  It  is  hoped  the  reader  will 
refer  to  and  read  some  of  the  one  hundred  and  fifty-seven  statutes 
aforesaid. 

New  York,  then,  is  Absolute  on  her  Soil.  —  It  is  certain,  then, 
that  as  the  United  States  is  a  party  to  these  proceedings,  declarations, 
and  grants  made  by  New  York,  long  after  the  present  federal  consti- 
tution was  established,  never  objecting  or  protesting,  but  accepting 
the  conditions,  there  has  never  been  the  slightest  abatement  of  the 
sovereignty  of  that  commonwealth ;  and  that  the  united  states  enters 
upon  her  soil  solely  by  virtue  of  her  authority,  with  her  permission, 
and  for  the  exclusive  purpose  of  promoting  her  defence  and  safety. 
And  New  York  receives  the  united  states  in  two  capacities  :  First,  as 
a  simple  property-holder  on  the  same  footing  with  other  owners ;  sec- 
ond, as  a  sort  of  viceroy  or  commission  of  the  sovereigns  in  league,  to 
do  the  "  business  "  of  their  "  defence  "  on  their  respective  territories, 
and  with  their  authority  and  means,  —  Uncle  Sam  to  continue  doing 
this  "  business  "  as  long  as  he  uses  the  said  foothold,  authority,  and 
means  in  "  providing  for  the  defence  and  safety  of  the  said  state,  and 
no  longer.1' 

Surely  no  king  of  earth  was  ever  more  of  a  sovereign  than  New 
York !  If  Fort  Lafayette,  standing  on  her  conditional  and  defeasible 
grant,  menace  her  with  attack  and  destruction,  if  she  do  not  yield  her 
will  at  the  command  of  the  said  Uncle  Sam,  should  she,  and  would  she 
not,  with  guns,  speak  her  judgment,  annulling  the  federal  tenure? 
If  she  cannot  rightfully  act  so,  in  such  an  exigency,  she  is  a  prov- 
ince, and  not  a  state,  a  subject,  and  not  a  sovereign,  having  returned 
to  the  condition  she  held  under  Britain,  and  nullified  the  American 
revolution ! 


CHAPTER  IX. 
OTHER  SOVEREIGNS   LIKE   NEW  YORK. 

NEW  YORK,  then,  exhibits  herself  and  appears,  in  the  present 
federal  system,  as  the  absolute  sovereign  within  her  bound- 
aries ;  and  the  association  called  "  the  united  states,"  so  far  as  relates 
to  its  foothold,  to  its  use  and  occupation  of  property,  and  to  its  gov- 
ernmental jurisdiction  on  the  soil  of  New  York,  appears  simply  and 
only  as  her  agent  and  grantee.  Nay  more,  all  of  New  York's  grants 
of  sites  for  forts,  navy-yards,  lighthouses,  etc.,  are  accepted  from  her, 
by  the  said  associated  states,  on  the  express  condition,  in  each  case, 
that  they  "are  to  retain  such  use  and  jurisdiction,  so  long  as  the 
said  tract  shall  be  applied  to  the  use  of  providing  for  the  defence  and 
safety  of  the  said  state,  and  no  longer." 

On  New  York's  soil,  federal  authority  is  solely  her  own  authority, 
delegated  for  her  own  purposes ;  her  safety,  and  the  security  of  her 
sovereignty,  or  right  of  self-government,  being  the  vital  objects ;  and 
those  who  act  in  wielding  the  same  only  appear  as  "representatives," 
"agents,"  "  servants,"  and  ''trustees,"  as  the  fathers  all  habitually 
called  them. 

There  can  be  no  possible  question  that  this  is  the  correct  view,  for 
New  York  has,  from  the  beginning  to  this  day,  kept  the  solemn 
declaration  in  her  fundamental  law — and  she  entered  the  union  with 
it  —  that :  "  No  authority  shall,  on  any  pretence  whatever,  be  exer- 
cised over  the  people  or  members  of  this  state,  but  such  as  is,  or  shall 
be,  derived  from,  and  granted  by,  the  people  of  this  state." 

I  cursorily  review  New  York's  case  at  the  opening  of  this  chapter, 
because  it  is,  in  principle,  that  of  the  rest,  as  will  now  be  seen. 

Queen  Massachusetts  speaks  idem  sonans.  —  This  federalized 
or  leagued  sovereign,  like  New  York,  grants  the  sites  of  forts,  navy- 
yards,  lighthouses,  etc.,  which  she  thinks  necessary  for  the  "business" 
of  "providing  for"  her  "defence"  and  "welfare,"  to  the  associated 
states,  to  be  held  so  long  as  the  said  "  business  "  remains  entrusted 
to  said  states.  Her  conditions  are  the  same  as  New  York  im- 
poses. Her  status  is  precisely  that  of  New  York.  Her  fundamental 


OTHER   SOVEREIGNS  LIKE  NEW  YORK.  343 

law  and  her  whole  history  show  that  all  federal  authority  exercised 
on  her  soil  is  delegated  by  her,  and  remains  hers ;  and  that  all 
federal  sites  and  jurisdiction  are  to  be  used  solely  for  her  "defence 
and  safety,"  leaving  her  sovereignty  unabated.  For  example,  in  the 
act  of  June  25,  1798,  she  cedes  Castle  Island,  in  Boston  harbor,  to 
"  the  united  states,"  declaring  that  "  all  civil,  and  such  criminal  pro- 
cess as  shall  issue  under  the  authority  of  this  commonwealth,  .  .  . 
may  be  executed  therein,  in  the  same  way  and  manner  as  though 
this  cession  and  consent  had  not  been  made  and  granted."  See 
also  the  act  of  June  17,  1800,  "authorizing  the  united  states  to 
purchase  the  site  for  the  navy-yard  at  Charlestown";  and  the  acts 
of  June  20,  1795,  and  June  20,  1816.  These  sites  are  to  be  used 
for  "  the  defence  and  safety  of  the  state ; "  and  the  sovereign  de- 
clares in  some,  if  not  all,  of  the  acts,  that  when  the  federal  foothold 
ceases  to  be  used  for  the  purposes  contemplated,  the  grant  of  it  is  to 
be  void,  and  of  no  effect." 

In  her  revised  statutes  of  1836,  page  56,  will  be  found  the  follow- 
ing :  "  Of  the  jurisdiction  of  the  commonwealth,  and  of  the  concur- 
rent jurisdiction  of  the  united  states,  over  places  ceded  by  the 
commonwealth  :  —  Section  1.  The  sovereignty  and  jurisdiction  of  the 
commonwealth  extend  to  all  places  within  the  boundaries  thereof; 
subject  only  to  such  rights  of  concurrent  jurisdiction  as  have  been,  or 
may  be,  granted  over  any  places  ceded  by  the  commonwealth  to  the 
united  states.  Section  2.  The  several  places  here  following,  which 
have  been  ceded  to  the  united  states  for  forts,  arsenals,  dockyards, 
lighthouses,  hospitals,  and  other  purposes,  and  over  which  concurrent 
jurisdiction  has  been  granted  to  the  united  states,  shall  continue 
to  be  subject  to  such  concurrent  jurisdiction,  according  to  the  tenor 
and  effect  of  the  respective  laws  of  this  commonwealth,  by  which 
they  were  so  ceded."  Then  follow  designations  of  about  fifty  fed- 
eral sites. 

The  Voice  of  Pennsylvania  on  the  Subject.  —  In  her  cession 
of  Mud  Island,  she  specifies  the  use,  makes  the  grant  void  if  not 
within  a  year  accepted,  with  conditions  ;  and  provides  that  "  the 
jurisdiction  of  the  state  of  Pennsylvania  over  the  said  island,  in  civil 
and  criminal  cases,  be  the  same  as  before  the  passage  of  this  act." 
See  also  act  of  assembly,  Feb.  1,  1796. 

The  act  of  April  18,  1795,  provides  for  the  survey  and  cession  of 
several  tracts  at  Presqu'  Isle  on  Lake  Erie,  "  for  the  accommodation 
and  use  of  the  united  states,  in  erecting  and  maintaining  forts 
thereon,"  to  be  held  by  "  the  united  states  so  long  as  they  shall  actu- 
ally maintain  a  fort  thereon,  and  no  longer."  This  act  contains  the 
following  :  "  And  it  is  the  express  intent  and  meaning  of  this  act  that 


344  SOVEREIGNTY  IN  THE   UNITED   STATES. 

nothing  herein  contained  shall  be  deemed,  construed,  or  in  anywise 
taken  to  cede  and  transfer  unto  the  united  states  the  jurisdiction  or 
right  of  soil  in  and  to  the  said  three  last-mentioned  lots,  but  only  the 
occupancy  and  use  thereof,  for  the  purposes  aforesaid." 

Pennsylvania  thus  shows  herself  to  be  absolute  in  her  territory, 
and  she  only  admits  the  federal  government  therein  as  the  agent  of 
the  federation,  to  occupy  and  use  definite  portions  of  her  soil  for  her 
"  defence  and  safety,"  while  she  keeps  her  sovereignty  and  jurisdiction 
unabated. 

Old  Virginia  acted  in  the  Same  "Way.  —  In  her  code  of  1849, 
is  found  an  enumeration  of  the  sites  for  the  erection  of  forts,  maga- 
zines, arsenals,  dockyards,  etc.,  the  jurisdiction  over  which  is  granted 
by  her  to  the  united  states.  There  are  nearly  a  score  of  them,  in- 
cluding Old  Point  Comfort  and  the  Rip  Raps.  The  chapter  concludes 
as  follows  :  "  And  the  transfers  of  property  and  jurisdiction,  author- 
ized by  the  said  acts,  being  subject  to  certain  terms  and  conditions 
therein  expressed ;  and  with  certain  restrictions,  limitations,  and  pro- 
visions therein  set  forth  :  It  is  hereby  declared  that  this  state  retains 
concurrent  jurisdiction,  .  .  .  and  its  courts,  magistrates,  and  officers 
may  take  such  cognizance,  execute  such  process,  and  discharge  such 
other  legal  functions  within  the  same  as  may  not  be  incompatible  with 
the  true  intent  and  meaning  of  the  said  acts." 

The  act  ceding  soil  and  jurisdiction  at  Old  Point  Comfort  (Fortress 
Monroe)  contains  the  usual  limitations,  conditions,  and  reservation  of 
jurisdiction,  and  concludes  as  follows  :  "  And  be  it  further  enacted, 
that  should  the  united  states  at  any  time  abandon  the  said  lands  and 
shoals,  or  appropriate  them  to  any  other  purpose  than  those  indicated 
in  the  preamble  to  this  act,  that  then,  and  in  that  case,  the  same  shall 
revert  to,  and  revest  in,  this  commonwealth." 

The  Understanding  of  South  Carolina.  —  President  Jefferson  re- 
ported to  congress,  February  3,  1806,  "an  act  of  cession,  of  the  state 
of  South  Carolina,  of  various  forts  and  fortifications,  and  sites  for 
the  erection  of  forts,  in  that  state,  on  the  conditions  therein  ex- 
pressed." 

Her  act  of  December  19,  1805,  provides  that  hereby  is  granted  to 
the  United  States  of  America  all  the  right,  title,  and  claim  of  this 
state  to  the  following  forts,  and  sites  for  the  erection  of  forts,  etc.  : 
Five  acres  at  Fort  Moultrie ;  twenty  acres  at  Fort  Johnson  ;  three 
acres  at  Fort  Pinckney ;  two  acres  of  "  the  sand-bank  marked  '  C  '  in 
the  plan  of  Charleston  Harbor,"  etc.  It  is  provided  that  commis- 
sioners are  to  survey  and  locate ;  that  if  the  united  states  shall  not 
repair  the  present,  and  build  certain  new  fortifications,  uthis  grant  or 
cession  shall  be  void  and  of  no  effect;"  and  that  "all  process,  civil  or 


OTHER  SOVEREIGNS  LIKE  NEW  YORK.  345 

criminal,  issued  under  the  authority  of  this  state,  or  any  authority 
thereof,  shall,  and  may,  be  served  and  executed  on  any  part  of  lands, 
sites,  forts,  and  fortifications  so  ceded  by  this  act,  and  on  any  person  or 
persons  there  being,  and  implicated  in  matters  of  law." 

The  act,  then,  requires  that  "the  United  States"  " shall,  before 
possession  be  taken  of  said  sites,  .  .  .  pay  due  compensation  to  the 
owners ; "  and  it  exempts,  in  favor  of  "  the  United  States,"  the  prop- 
erty it  thus  allows  that  association  to  acquire,  occupy,  and  use,  from 
taxation.1 

How  distressing  this  revelation  must  be  to  the  Websterian  ex- 
pounders of  the  day,  such  as  Curtis,  Pendleton,  Adams,  Jameson, 
Mansfield,  Greeley,  Lincoln,  and  others  !  What !  must  this  great  "  na- 
tion," or  great  "  union,"  or  great  "  united  states  "  go  only  as  an  agent 
into  South  Carolina,  and  under  her  grant?  Must  this  mighty  and 
august  "  union,"  or  association,  acquire  its  property  in  South  Carolina 
just  as  John  Smith  does  ?  Does  it  have  no  right  of  occupancy,  use, 
or  jurisdiction  on  the  soil  of  South  Carolina,  but  what  it  suits  her  to 
grant1?  Must  Uncle  Sam  be  exempted  from  taxation,  just  as  Uncle 
Tom  or  Aunt  Sally  would  be]  And  must  this  potentate  hold  his 
occupancy,  use,  and  jurisdiction  in  South  Carolina  "  so  long  as " 
he  uses  them  "  for  the  defence  and  safety  of  this  state,  and  no 
longer  "  1 

Are  all  these  grants  or  cessions  to  be  "  void  and  of  no  effect,"  if  the 
conditions  afore-mentioned  be  violated1?  And  are  they  primarily  for 
her  benefit,  and  subject  to  her  will,  so  that  she  can  raise  her  little 
foot,  and  (with  no  other  restraint  than  the  fear  of  getting  whipped) 
kick  the  said  avuncular  relative  out  of  her  premises,  if  he  violate 
her  conditions,  insult  or  menace  her,  or  attempt  her  harm  or  destruc- 
tion 1 

And  when  it  is  tritely  said  that  "the  military  is  subordinate  to  the 
civil  power,"  do  we  mean  that  federal  soldiers  and  officers,  to  wit,  "  the 
army  and  navy  of  the  united  states"  and  "the  commander-in-chief "  ! 
are  subordinate  to,  and  never  above,  the  civil  power  of  South  Carolina, 
i.  e.  her  sovereignty  and  right  of  government  1 

All  these  questions  are  to  be  answered  in  the  affirmative.     And 

1  For  numerous  acts  of  cession  on  conditions  and  defeasible,  see  X.  Stat.  of  S.  C., 
pp.  74,  589,  et  seq.  After  much  inquiry  and  considerable  research,  aided  by  friends  of 
ability  in  South  Carolina,  I  am  almost  forced  to  the  conclusion  that  the  united  states  has 
never  had  any  title  to  the  site  of  Fort  Sumter.  One  of  them  says :  "  The  view  that  this 
fort  has  never  been  ceded  is  much  strengthened  by  the  ordinance  of  April  18, 1861,  which 
makes  a  general  grant  to  the  Confederate  States  of  the  occupation  and  use  of  all  the  forts, 
etc.,  lately  in  possession  of  the  united  states,  together  with  Fort  Sumter,"  etc.  Is  it 
possible  that  Uncle  Sam  was  on  Miss  Carolina's  premises  by  her  permission  and  for  her 
uses,  and  that  he  threatened  to  shoot  her,  if  she  did  not  let  him  be  master  ? 


346  SOVEREIGNTY  IN  THE  UNITED   STATES. 

history  shows  that  these  were  the  views  of  the  fathers,  so  far  as  they 
expressed  themselves  on  ultimate  sovereignty  and  tinal  remedies. 

All  historical  evidence  shows  South  Carolina  to  have  been,  and  to 
have  intended  to  remain,  an  absolute  sovereign ;  to  have  used  her  own 
exclusive  reason,  judgment  and  will  in  making  a  voluntary  union  with 
her  sister  states,  to  "  provide  for  "  her  and  their  "  defence  and  safety ;" 
and,  finally,  like  New  York,  Massachusetts,  and  Pennsylvania,  to  have 
confided  her  powers,  men,  and  means,  and  permitted  federal  foothold 
on  her  soil,  on  the  express  condition  that  "  the  United  States  "  was  to 
hold  and  use  them  "  so  long  "  as  they  were  "  used  for  the  defence  and 
safety  of  the  state,  and  no  longer." 

So  say  the  New  States.  —  As  the  universally  accepted  principle 
was  that  new  states,  admitted  by  the  congress  of  the  states,  from  time 
to  time,  into  the  union  of  states  [Art.  IV.,  §  3],  became  equally  "sove- 
reign, free,  and  independent,"  they  are  naturally  to  be  expected  to 
have  similar  records  as  to  the  subject  in  hand.  For  instance,  Alabama 
provides  that  "  the  united  states  may  acquire  and  hold  lands  within 
the  limits  of  this  state,  as  sites  for  forts,  magazines,  arsenals,  dock- 
yards, etc.,  as  contemplated  and  provided  by  the  constitution  of  the 
united  states  "  [Ala.  Code,  Art.  III.,  §  21,  p.  61].  "  The  governor  .  .  . 
is  authorized,  on  the  part  of  the  state,  to  cede  the  united  states  juris- 
diction over  such  lands,  to  hold,  use,  and  occupy  the  same  for  the 
purposes  of  the  cession,  and  none  other.  The  jurisdiction  thus  ceded 
does  not  prevent  the  execution,  on  such  lands,  of  any  process,  civil  or 
criminal,  under  the  authority  of  this  state,  nor  prevent  the  laws  of 
this  state  from  operating  over  such  lands  "  [Ibid.  §  22].  Alabama 
then  proceeded  to  provide  for  the  security  of  united  states  property, 
and  exempt  it  from  taxation. 

Surely,  where  the  only  foothold  and  jurisdiction  the  union  of  states 
can  have  in  a  state,  is  granted  by  the  latter  on  conditions  that  the 
same  is  to  be  used  for  certain  purposes,  and  no  others,  and  be  held 
just  so  long  as  used  for  the  defence  and  safety  of  the  state,  and  no 
longer,  the  proper  conclusion  or  principle  is,  that  the  state  is  sove- 
reign, and  that  the  governmental  agency  of  the  united  states  (the  said 
states  being  themselves  the  government)  is  subordinate  to,  and  with- 
out control  over,  the  state. 


UNIVERSITY 


CHAPTER  X. 

SOVEREIGNTY  IN  THE  NEW  STATES. 

TMPORTANT  quotations  apposite  to  this  subject  are  to  be  found  in 
X  Chapter  VII.  of  this  Part.  Of  the  great  publicists  quoted,  Mon- 
tesquieu and  Vattel  were,  at  the  time  our  federal  polity  was  established, 
the  best  authorities  of  the  world  on  public  law  and  political  philosophy ; 
and  they  —  especially  the  former  —  greatly  guided  and  influenced  our 
fathers  in  their  grand  work. 

These  publicists  laid  down  the  principle  that  republican  states  can 
make  of  themselves  "  an  assemblage  of  societies,  that  constitute  a  new  one, 
capable  of  increasing  by  new  associations."  Such  confederation,  being 
"  composed  of  small  republics,  it  enjoys  the  internal  happiness  of  each," 
while,  by  uniting  their  strength,  means,  and  wisdom,  they  have  "  all 
the  advantages  OF  LARGE  MONARCHIES."  They  do  not,  by  uniting,  part 
with  their  sovereignty. 

The  idea,  on  the  one  hand,  is  that  the  individual,  self-governing 
people  can,  in  small  communities,  ascertain,  comprehend,  and  act  upon 
the  comparatively  few  facts  necessary  for  self-government  and  the  pro- 
motion of  "  internal  happiness,"  while  they  could  not  possibly  do  so 
over  an  immense  area  and  population.  The  idea,  on  the  other  hand, 
is,  that  all  these  societies  or  states  shall,  as  one  state,  hold  relations 
with  the  outside  world,  and  be  able  to  command  respect  as  a  member 
of  the  family  of  nations. 

Here,  in  epitome,  is  the  very  system  which  our  fathers  sought  to 
establish.  It  suits,  with  expanding  autonomy,  our  growing  country  and 
rapidly  increasing  people,  and  assures  to  all  Americans,  however  distant 
in  space  or  time,  the  safety  of  their  inherited  "  blessings  of  liberty  "  ! 

Of  course  our  statesmen  must  have  expected  that  the  thirteen  self- 
governing  peoples,  which  they  were  then  inducing  to  federalize  them- 
selves, would  greatly  " increase  by  new  associations"  so  that,  in  time, 
through  natural  growth  and  immigration,  commonwealths  or  republics 
would  be  spread  over  this  vast  continent,  each  enjoying  the  priceless 
"  blessings  of  liberty  "  and  autonomy,  —  "  representative  democracy 
and  the  federalizing  of  states,"  to  use  Joel  Barlow's  expression, — 


348  SOVEREIGNTY  IN  THE  UNITED   STATES. 

being  "  the  consoling  principles  "  "  on  which  we  have  founded  our 
constitutions." 

Our  system,  then,  is  "  representative  democracy,"  i.  e.  societies  of 
people  governing  themselves  through  "  substitutes  and  agents,"  and 
the  federalizing  of  states  to  form  "  the  united  states."  The  adding 
of  new  states,  from  time  to  time,  and  the  growth  of  all  in  population, 
wealth,  and  power,  have  resulted  in  our  present  grand  sisterhood  of 
thirty-eight  commonwealths,  —  the  republic  of  republics.  I  now  pro- 
ceed to  consider 

The  origin  of  new  states,  their  sovereignty  or  right  of  self- 
government,  and  their  relations  with  the  rest,  and  with  the  common 
government ;  and,  at  the  outset,  I  assume  and  expect  to  show  that  all 
the  commonwealths,  old  and  new,  are  absolutely  equal,  and  are  the 
real  governments  of  the  land,  and  the  source  of  all  law,  —  they,  as 
republics,  governing  themselves,  both  separately  and  federally,  and 
being  subject  to  no  power  on  earth. 

In  discussing  the  formation  of  new  states,  we  have  primarily  and 
principally  to  do  with  men. 

"  These  constitute  a  state ; "  and  we  must  consider  them  in  two 
aspects :  First,  as  human  beings,  created  as  free  moral  agents,  and 
thus  endowed  with  the  right  of  self-government  by  Deity.  [See 
Part  V.,  Ch.  IX.,  infra.~\  Second,  as  citizens  or  subjects  of  a  state, 
who  obey  the  social  instinct  in  uniting  themselves  for  self-protection 
and  self-government,  the  obligation  of  the  body  being  to  govern  and 
protect,  while  each  member's  reciprocal  one  is  to  obey,  support,  and 
defend,  these  mutual  obligations  being  the  real  social  compact,  —  an 
entity  resulting  from  actions,  which  speak  louder  than  words.  Thus 
do  "  men  constitute  a  state."  [Part  IV.,  Chs.  I.  and  II.] 

The  right  of  self-government  in  man  is  the  germinal  idea  of  all 
republicanism.  It  is  the  starting-point  and  test  of  all  our  political 
problems.  Men  are  the  source  of  all  governing  power.  They,  as 
individuals,  are  subject  to  themselves  as  a  commonwealth.  This  is 
self-government.  Moreover,  the  right  of  self-rule  in  man  is  to  be 
abridged  only  by  his  consent,  he  and  his  associates  in  conjoint  self- 
government  virtually  saying  :  "  I  remit  to  the  society  we  form,  certain 
acts,  to  be  done  by  and  for  all,  on  all,  and  agree  not  to  do  them 
myself."  So  it  is  with  the  right  of  self-rule  in  states,  as  "  moral  per- 
sons "  or  bodies-politic.  In  federating  they  virtually  use  the  same 
words.  No  abridgment  is  rightful  unless  based  on  voluntary  consent. 
The  society  is  the  home  government  —  the  societies  the  general  one. 

We  now  see  alike  the  natural  origin  of  new  states,  and  the  evidence 
of  their  equality.  We  must  regard  men  as  equal,  and  the  bodies  they 
form  as  equal,  all  being  under  only  voluntary  engagements.  This  is 


SOVEREIGNTY  IN   THE  NEW   STATES.  349 

political  freedom.  It  is  the  rope  of  sand  so  many  thoughtless  people 
whine  about,  —  the  strongest  cohesion  possible  to  any  really  republican 
people,  but  the  weakest,  as  it  ought  to  be,  where  truth,  justice,  amity, 
and  mutual  interest  are  gone,  and  where  government  stands  by  armed 
force,  instead  of  the  suffrage  of  human  hearts. 

The  people,  as  the  collective  body  called  the  state,  have  the  corre- 
sponding collective  heart,  mind,  reason,  judgment,  will,  and  con- 
science, the  essential  faculties  of  a  moral  being,  —  a  being  that  must 
have  the  collective  instinct,  and  of  course  the  collective  right  and 
duty,  of  self-preservation. 

We  see  also  that  men  are  naturally  in  society,  and  that  these  indi- 
vidual self-governors  or  voters  must  require  that  the  area  covered  by 
the  society  should  be  small,  with  facile  methods  and  means  of  finding 
facts  and  exchanging  views,  so  as  to  reason  and  judge  upon  them  in 
the  performance  of  their  governing  duty.  The  larger  the  field  the 
less  intelligently  the  people  can  act  in  electing  their  agents,  and  hold- 
ing them  to  duty  and  account.  And  it  follows  that,  as  to  our  general, 
outside,  inter-state,  and  international  affairs,  these  self-governors  must 
regard  them  as  too  distant  and  difficult  to  comprehend,  and  therefore 
must  send  special  and  fit  agents,  with  written  powers,  to  attend  to 
them.1 

The  rationale  of  our  system,  and  the  wisdom  of  our  fathers,  are 
thus  shown.  Just  think  of  an  Oregonian  farmer  investigating  Flori- 
dian  affairs,  to  get  the  facts  on  both  sides  of  every  subject,  for  that 
judgment  which  a  vote  is,  if  it  is  anything  at  all,  when  the  poor  fellow 
is  not  even  properly  informed  as  to  his  own  county's  affairs !  Just 
think,  too,  of  statesmen  resolving,  at  the  end  of  one  hundred  years' 
experience  of  our  system,  that  our  fathers'  wisdom  is  foolishness,  that 
these  "  states  is  a  nation,"  and  that  each  citizen  thereof  must  investi- 
gate, understand,  and  vote  his  judgment  on  all  the  said  nation's 
affairs,  local  as  well  as  general !  for  such  is  necessarily  the  duty  of 
the  members  of  a  self-governing  nation. 

Let  us  now  see  the  historical 

Distinctness  of  the  first  new  states  on  the  continent  of  America, 
when  they  were,  so  to  speak,  widely  separated  islands  in  a  sea  of  bar- 
barism. The  self-protection  and  self-government  of  the  colonists,  by 

1  "It  is  natural  to  a  republic,"  says  Montesquieu,  "to  have  only  a  small  extent  of 
territory,  otherwise  it  cannot  long  subsist.  ...  In  large  republics,  the  public  good  is 
sacrificed  to  a  thousand  views  ;  in  a  small  one,  the  interest  of  the  public  is  easily  per- 
ceived, better  understood,  and  more  within  the  reach  of  every  citizen  ;  abuses  have  a 
less  extent,  and,  of  course,  are  less  protected."  He  also  shows  how  Sparta  lasted,  be- 
cause, after  its  wars,  it  did  not  extend  its  area,  and  how  Athens  and  Lacedamon,  by 
ambition  to  go  outside,  control  the  union,  and  become  large,  lost  their  liberty  to  a  mon- 
archy. Note  the  immense  republics  of  France,  and  the  revolution-breeding  centralisms 
of  Paris. 


350  SOVEREIGNTY  IN  THE  UNITED   STATES. 

collective  action  and  in  collective  forms,  were  aimed  at ;  and  so  it  will 
be  as  long  as  time  and  men  shall  last,  and  new  commonwealths  be 
formed. 

Referring  now  to  the  beginning  of  the  first  chapter  of  this  work,  as 
well  as  Chapter  I.  of  Part  IV.,  both  of  which  should  be  read  herewith, 
I  wish  to  impress  on  the  reader's  mind  that  most  striking  fact,  that 
in  all  the  history  of  the  rising  states,  their  absolute  separateness  and 
individuality  was  never  for  a  moment  doubtful.  There  were  tempo- 
rary leagues  or  unions  for  common  defence,  in  which  they  always  acted 
with  that  entire  and  independent  individuality,  which  would  be  exhib- 
ited in  the  joint  action  of  so  many  men.  Not  only  so,  but  there  were 
imperative  reasons  why  no  coalescence  or  joinder  of  population  on  any 
national  basis,  could  or  should  have  been  made ;  and  we  know  that, 
no  matter  what  was  done  previously,  the  second  of  the  articles  of  con- 
federation and  union  pledged  the  faith  and  strength  of  all  the  states 
to  each,  that  she  should  be  independent  in  existence  as  a  state,  free 
in  will,  and  sovereign  in  authority,  with  no  power  out  of  her  but  what 
was  expressly  delegated  to  the  united  states,  and  entrusted  to  the 
federal  agency,  to  be  used  for  her  and  her  united  sisters. 
Aside  from  the  isolation  above  referred  to,  let  us  look  at 
Their  different  forms  of  polity,  which  were  of  three  origins  and 
kinds :  — 

1.  The  provincial  form,  in  which  the  crown  commissioned  govern- 
ors, and  appointed  a  council  which  formed  an  upper  house,  while  the 
planters  elected  the  lower  one  of  the  legislature. 

2.  The  proprietary  form,  in  which  the  proprietor  appointed  gov- 
ernors, and  authorized  legislators.     It  was  a  kind  of  feudatory  prin- 
cipality or  county  palatine. 

3.  The  charter  governments,  which  were  political  corporations.     The 
governor  was  named  by  the  crown.     The  people  elected  the  general 
assembly.     Both  frame  and  powers  of  government  were  provided  for 
in  the  charter.     [See  I  Story's  Com.  §  159  et  seq.~\ 

These  three  kinds  of  government  were  so  interlocated  that  any 
combination  in  governmental  action,  except  by  league,  was  simply 
impossible,  and  the  idea  of  it  absurd.  New  Hampshire  was  provin- 
cial ;  Massachusetts  and  Connecticut,  chartered ;  New  York,  provin- 
cial ;  Pennsylvania  and  Maryland,  proprietary ;  Virginia  and  the 
Carolinas,  provincial,  and  Georgia  chartered.  To  say  nothing  of  the 
proprietors  living  in  England,  no  coalescence  could  be  had  without 
the  assent  of  the  sovereign  mind,  which  always  presumably  preferred 
their  separateness.  Divide  et  impera  ! 

Separateness  in  Religious  Faith.  —  As  to  their  possible  religious 
yearnings  to  be  in  sweet  communion  joined,  following  their  colloca- 


SOVEREIGNTY  IN  THE  NEW  STATES.        351 

tion,  we  find  them  Puritan,  Baptist,  Dutch,  Swede,  Quaker,  Catholic, 
Episcopalian,  Huguenotic,  etc. 

For  these  and  other  reasons,  the  colonies  were  probably  no  more 
disposed  to  become  one  state,  or  a  nation  of  provinces,  than  so  many 
states  in  Europe  were.  Their  common  circumstances,  common  de- 
sires, and  common  needs  caused  some  common  sentiments  and  views. 
A  mere  shade  of  general  public  opinion  prevailed,  and  much  general 
sympathy  was  felt,  —  about  as  much,  I  presume,  as  is  usually  found 
among  neighboring  and  friendly  states. 

Their  neighborhood,  similar  history  and  traditions,  their  inter- 
colonial amity  and  sympathy,  their  like  principles  as  to  freedom  and 
government,  and,  above  all,  their  great  and  menacing  danger  from 
their  powerful  sovereign  and  foe,  did  actually  cause  them  to  propose 
joint  action,  and  did  finally  consolidate  them  into  a  military  phalanx 
of  states,  each  absolutely  free  in  will,  but  all  united  in  a  heroic  effort 
for  their  independence.  Their  motive  and  thought  took  the  form  of 
a  motto,  —  "united  we  stand,  divided  we  fall,  "-^-but  it  was  as  dis- 
tinct states  that  they  were  to  unite  to  avoid  falling.  Each  had  its 
own  absolute  individuality ;  its  own  peculiar  representation  in  any 
joint  action ;  its  own  esprit  de  corps  and  will ;  and  its  own  instinct 
of  self-preservation,  which,  of  course,  involves  the  right  and  duty  of 
self-preservation. 

The  Myth  of  Nationality.  —  Some  latter-day  writers  boldly  assert 
that  a  spirit  of  nationality  showed  itself  early,  and  grew  in  strength 
till  independence,  when  it  culminated  in  that  more  intimate  union  the 
people  yearned  for,  which  they  call  the  nation;  and  one  of  them 
spends  a  hundred  pages  or  more  describing  "  the  birth  of  the  nation," 
without  giving  a  fact,  or  phantom  of  a  fact,  evidencing  such  monstrous 
event.  It  is  as  fabulous  as  the  phoenix  !  Every  fact  of  history  con- 
tradicts the  theory,  and  shows  that  all  the  acts  and  thoughts  of  the 
people  and  their  leaders,  were  of  voluntarily  united  states  —  federal- 
ization  instead  of  nationalization. 

What  do  these  astonishing  writers  mean  1  Is  it  to  no  purpose  that 
Fisher  Ames,  Theophilus  Parsons,  Samuel  Adams,  John  Hancock, 
Governor  Bowdoin,  and  others  all  declared,  in  the  Massachusetts 
ratifying  convention,  without  the  dissent  of  a  single  friend  of  the 
constitution,  that  the  nationalizing  theory  was  unfounded ;  that  "  a 
consolidation  of  the  states"  u  would  subvert  the  constitution ; "  and 
that  "  too  much  provision  cannot  be  made  against  it "  1  [Supra, 
Part  II.,  Ch.  II.]  Is  there  no  weight  in  the  fact  that  Hamilton, 
Madison,  Washington,  Livingston,  Marshall,  Pendleton,  and  others  are 
on  record  to  the  same  effect,  that  they  vigorously  met  this  very  issue, 
and,  by  their  signal  triumph,  barely  saved  the  proposed  system  from 


352  SOVEREIGNTY  IN  THE  UNITED   STATES. 

defeat  1  Will  mere  audacity  of  unfounded  assertion,  at  this  late  day, 
unwrite  the  written  history  of  Massachusetts,  which,  in  every  line  and 
word,  supports  the  separateness  of  existence,  freedom  of  will,  and 
absolute  sovereignty  of  the  state  in  the  union  1 

Why  should  we,  the  grown  and  educated  men  of  the  country,  with 
our  knowledge  of  one  hundred  years  of  federal  history  and  "federal 
liberty,"  be  told,  and  compelled  to  swallow,  the  false  and  foolish  dogma 
that  these  "united  states  is  a  nation,"  —  an  idea  dignified  by  suppos- 
ing it  to  emanate  from  debating  boys,  who  have  not  yet  reached  their 
historical  and  grammatical  studies'?  Let  us  now  pass  on  to 

The  New  States  of  Latter  Days.  —  I  have  argued  to  little  purpose 
if  I  have  not  made  it  obvious  that  we  must  accept,  in  our  arguments, 
the  free  man  and  the  free  state,  —  the  free  men,  who  contract  to  be  in 
society,  and  the  free  societies,  who  contract  to  be  in  union,  the  tie  in 
both  cases  being  a  voluntary  engagement.  [Vattel.] 

Nay,  more,  Americans  must  of  necessity  always  assume  the  capacity 
of  man  for  self-government ;  for  we  have  unceasingly  vexed  the  ear  of 
the  world  with  the  assertion  of  it ;  and  we  point  proudly  to  Massachu- 
setts, Connecticut,  Virginia,  Georgia,  and  other  states,  as  having  respec- 
tively governed  themselves,  through  generations,  with  signal  success. 

Again,  we  must  consider  that  the  people  rule  themselves  of  original 
and  inherent  right,  both  locally  and  generally ;  for,  as  Madison  says, 
in  Number  46  of  the  Federalist :  "  The  federal  and  state  governments 
are,  in  fact,  but  different  agents  and  trustees  of  the  people,  instituted 
with  different  powers.  .  .  .  The  ultimate  authority  resides  in  the  people 
alone." 

States  are  Societies  based  on  the  Heart.  —  Again,  we  must  keep 
it  in  view  that  all  republics  are  based  on  the  human  heart.  Men 
consociate  to  gain  what  they,  in  their  hearts,  desire,  hope  for,  and  feel 
the  need  of;  they  press  forward  with  confidence  and  energy  into  the 
future,  and  into  the  wilderness,  to  better  their  condition  ;  and  they 
strive  for  wealth  and  the  objects  of  ambition,  and  yearn  for  the  hap- 
piness of  domestic  life.  They  are  moved  to  daily  action  and  duty, 
and  even  to  dare  danger  and  death,  by  the  hold  on  their  hearts  that 
home,  family,  kindred,  friends,  neighbors,  and  fellow-citizens  have ;  all 
these  being  in  the  society,  or  commonwealth,  to  which  they  belong, 
and  which  they  necessarily  form  by  coming  together  under  the  recipro- 
cal obligations  heretofore  mentioned,  —  the  obligations  of  the  social 
compact.  Here  is  their  only  conceivable  tie  of  allegiance.  They  are 
bound  to  and  in  the  society  that  "protects  "  them,  promotes  their  "  wel- 
fare," and  secures  their  "blessings  of  liberty."  In  short,  allegiance  is 
due  to  themselves,  —  due  by  each  to  all,  —  no  king  existing  hereabout 
for  allegiance  and  loyalty  but  King  People  ! 


SOVEREIGNTY  IN  THE  NEW  STATES.        353 

How  Men  become  New  States,  and  these  Sovereign.  —  In  start- 
ing to  find  the  above,  let  us  keep  it  in  view  that  the  American  people 
are  not  only  subjects  (i.  e.  members  and  citizens)  of  states,  but  the 
states  themselves.  They  as  such  own  all  the  territory,  and  have  sove- 
reignty over  it.  Each  state  is  sovereign  over  that  within  its  own 
borders,  —  all  are  jointly  sovereign  over  that  without  the  states. 

Now  it  would  be  absurd  to  say  that  men  can,  when  only  subjects, 
and  out  of  the  society  in  which  alone  they  have  governing  capacity, 
go  on  the  territory  of  the  united  sovereigns,  and,  by  simply  associ- 
ating themselves,  generate  a  sovereignty  there,  which  shall  supplant 
the  sovereignty  of  the  united  states !  This  is  the  "  squatter  sove- 
reignty "  doctrine,  as  taught  by  Cass  and  Douglas. 

The  congress  of  states  has  the  right  to  say,  and  practically  does 
say  :  "  You  pioneers  or  settlers  have  the  privilege  of  emigrating  to,  and 
occupying,  the  territory  of  the  united  states,  within  certain  limits,  on 
condition  that  you  organize  yourselves,  abide  by  the  law,  keep  order, 
observe  morality,  promote  education,  etc. ;  so  that,  when  sufficient  in 
numbers,  you  will  show  capacity  for  self-government,  and  fitness  to  be 
an  equal  in  this  community  of  communities,  or  republic  of  republics." 

The  Status  and  Rights  of  a  Settler.  —  Once  a  subject  always  one, 
is  perhaps  as  true  in  a  republic  as  in  a  monarchy.  'He  must  be  a 
member  of  society,  a  part  of  government,  and  a  subject  of  law.  Being 
a  republican,  however,  he  can  change  his  societal  connection  at  will ; 
but  no  expatriation  is,  or  can  be,  recognized,  which  would  exempt  him 
from  societal  duty  and  law.  Even  if  not  generally  implied  in  social 
compacts,  some  of  the  states  seem  to  express  it.  Thus  Vermont  de- 
clares that  "  all  people  have  a  natural  and  inherent  right  to  emigrate 
from  one  state  to  another  that  will  receive  them." 

The  intending  members  of  the  new  state,  then,  go  with  the  per- 
mission, and  form  society  under  the  protection  of  the  sovereigns  — 
the  united  states;  and,  with  the  status  of  men  and  citizens,  they  per- 
fect or  consummate  the  transfer  of  their  citizenship,  when  the  new 
state  is  completed,  and  her  equality  is  acknowledged  by  the  congress 
of  the  previous  states.  "  New  STATES  may  be  admitted  by  the  con- 
gress into  this  union."  [Constitution,  Art.  IV.  §  3.] 

Whence  comes  the  New  State's  Sovereignty  ?  —  The  germ  of 
this  right  of  self-government  is  inherent  in  man,  as  has  been  shown. 
The  complete  sovereignty  is  inherent  and  original  in  the  collective 
people,  though  on  the  federal  domain  it  is  in  abeyance  for  want  of 
right  to  exercise  it ;  the  case  being  much  like  that  of  a  man  abroad 
from  his  commonwealth,  who,  though  he  has  the  status  of  citizen, 
cannot  in  many  respects  use  it.  For  example,  General  Grant  was  a 
citizen  and  subject  of  Illinois  before,  during,  and  after  his  presidency 

23 


354  SOVEREIGNTY  IN  THE  UNITED   STATES. 

and  his  travels,  but  he  could  aid  in  ruling,  only  at  home,  and  under 
the  state,  —  that  is,  when  properly  circumstanced. 

Is  it  not  obvious,  then,  that  the  congress  of  states,  by  admitting  a 
new  state,  acknowledges  her  equality,  and  her  sovereignty  over  her 
domain,  as  well  as  her  equal  right  to  participate  in  federal  govern- 
ment ;  but  does  not  confer  sovereignty  by  the  admission  1 

We  mast  note  that  the  power  of  congress  is  not  one  to  admit  a 
province,  or  other  subdivision  or  dependency,  or  any  body  of  lower 
grade  than  a  state,  i.  e.  a  political  organization  of  equal  rank  with  those 
already  in  union. 

With  deference,  I  submit  some  reasons  for  this  view  :  — 

The  power  to  admit  states  must  be  strictly  confined  to  what  is 
written.  Without  some  expression,  it  cannot  be  presumed  that  the 
states  intended  to  have  any  inferior  bodies  in  the  union.  Webster's 
powerful  argument  for  imposing  conditions  on  Missouri  [see  Appen- 
dix F]  was  not  followed;  but  the  opposite  principle  seemed  to  pre- 
vail. Among  other  advocates  of  it,  the  great  Clay,  in  1819,  came 
down  from  the  speaker's  chair,  and  argued  five  hours  against  condi- 
tions, and  hence  for  absolutely  equal  states. 

The  technical  word  "  state  "  is  applied,  in  the  constitution,  to  New 
York,  Virginia,  Maine,  and  Texas,  just  as  it  is  to  France,  Italy,  Russia, 
and  Spain.  [Art.  III.  §  2  ;  Amendment  XL]  And  the  very  thing 
that  makes  a  state  differ  from  any  inferior  political  organization,  is 
sovereignty.  As  Daniel  Webster  said  —  when  the  constitution  uses 
well-known  language,  it  uses  it  in  its  well-known  sense. 

Again,  at  the  very  moment  of  using  the  word  "  state,"  to  designate 
one  of  the  parties  that  were  to  ratify  and  establish  the  new  constitution, 
the  then  existing  league  or  federal  compact  pledged  the  faith  of  all 
the  states,  that  each  was  a  sovereign  one,  up  to  the  actual  going  into 
effect  of  the  new  system.  [See  the  2d  article  of  Confederation.]  And 
this  equal  sovereignty  of  the  states  in  the  union,  was  the  view  of  all 
the  leading  fathers.  [See  Part  I.,  Chapter  VII] 

And,  finally,  the  country  has  always  acted  on  this  idea,  for  North 
Carolina,  Rhode  Island,  and  Texas  were  confessedly  admitted  as  abso- 
lutely equal,  while  the  ordinance  as  to  the  northwest  territory,  and 
the  Louisiana  treaty,  provided  for  the  admission  as  equals  of  the 
new  states  to  be  carved  thereout.  Can  you  think,  dear  reader,  of 
any  political  difference  between  Ohio  and  Connecticut,  Virginia  and 
Missouri,  New  Jersey  and  Texas,  Georgia  and  California,  as  to  status, 
capacity,  or  rights]  Has  not  each  her  name,  people,  organism,  au- 
tonomy, and  place  and  representation  in  union  ?  Can  it  be  that  the 
common  governmental  agency  of  these  sisters  holds  discretion  to  treat 
them  otherwise  than  as  absolute  equals  1 


CHAPTEK  XI. 
THE  ULTIMATE  ARBITER. 

ON  the  questions  of  ultimate  supremacy  and  self-preservation,  the 
fathers  seldom  did  more  than  incidentally  speak,  but,  as  far  as 
they  went,  they  spoke  plainly;  and  all  the  history  of  establishing  the 
American  federal  polity  shows,  that,  in  devising  the  system,  they 
assumed  the  existence,  integrity,  and  sovereignty  of  the  states,  as 
pre-existent  and  indestructible  facts  or  entities.  The  great  aim  of  all 
was  to  preserve  the  said  communities,  and  unite  their  authority  in  the 
general  government  of  their  subjects,  and  their  strength  in  their  com- 
mon defence.  To  these  ends,  the  said  thirteen  communities,  which 
the  people  were,  federally  made  an  agency,  and  charged  it  with  a  few 
important  specific  duties.  As  to  such  matters  as  prevention,  defence, 
and  remedy  against  evils,  dangers,  attacks,  and  hurts,  local  and  inter- 
nal, —  these  pre-existent  commonwealths,  each  with  full  mental  and 
governing  faculties,  original  right,  and  unlimited  power,  took  natural 
cognizance,  and  made  full  provision.  The  capacity,  the  authority, 
and  the  duty  of  self-defence  must  be  where  dwells  the  original  and 
inherent  mind ;  for  the  idea  of  direct  mental,  or  instinctive,  control  of 
physical  force  is  necessitated ;  and,  as  attack  and  hurt  are  local,  the 
original  right,  the  self-capacity,  the  self-power,  and  the  sense  of  duty 
must  be  on  the  spot,  feeling,  knowing,  and  acting  at  once,  and  di- 
rectly, for  defence  or  repulsion.  Where  harm  can  come,  the  power 
and  duty  to  protect  and  remedy  should  be  near. 

No  Federal  Capacity  or  Duty  for  Direct  Local  Defence.  —  On 
the  other  hand,  the  federal  "  agents  and  servants,"  as  the  fathers  call 
them,  are  far  removed  from  the  troubles  j  they  only  act  with  dele- 
gative  authority,  and  as  directed  in  writing ;  they  are  charged  with  a 
few  important  general  affairs,  and  prohibited  from  meddling  with 
local  ones ;  they  are  not  in  duty  bound  even  to  know  of,  originally, 
much  less  act  on,  danger  or  harm  in  a  state,  but  must  await  official 
advices  of  it,  as  well  as  a  formal  official  call  for  aid,  —  if  this  be 
needed,  —  a  call  not  made  on  them,  but  on  associated  sovereigns, 
under  a  treaty  stipulation,  —  a  call  which  the  government  can  respond 


356  SOVEREIGNTY  IN  THE  UNITED  STATES. 

to,  only  as  an  agent  and  servant.  A  million  cases  of  domestic  vio- 
lence might  occur,  without  the  power,  duty,  or  even  attention  of  the 
federal  agency  being  required ;  and  in  our  ninety-odd  years  of  federal 
history,  we  have  had  but  two  or  three  such  exigencies. 

It  is  obvious,  then,  that  all  the  essentials  and  ideas  of  ultimateness 
are  concentred  in  the  commonwealth,  where  the  inherent  and  origi- 
nal mind  dwells,  and,  in  self-defence,  directly  and  functionally  acts, 
with  its  own  organs  and  instruments ;  and  where  Jehovah  has  placed 
both  the  power  and  the  duty  of  self-preservation.  And  it  seems  to 
follow  necessarily  :  1st.  That  the  state  is  the  ultimate  arbiter  on  all 
questions  —  certainly,  on  all  that  touch  her  existence,  integrity,  and 
sovereignty ;  2d.  That  as  the  only  questions  the  states,  as  the  estab- 
lishers  of  the  constitution,  intended  to  place  under  their  federal  gov- 
ernment and  courts,  were  selected  and  stated  in  the  federal  instrument, 
all  thereout  must  remain  inter-state  or  international  in  their  charac- 
ter ;  3d.  That  all  interpretation  or  construction  must  be  in  favor  of 
the  grantors  and  against  the  grantees  of  powers ;  and  4th.  That  any 
federal  official,  to  save  himself  from  the  stain  and  infamy  of  perjury, 
must  show  the  written  intent  of  the  people  to  be,  that  he  shall  have 
the  specific  powers  he  claims  and  uses.  And  here  I  would  stop  and 
ask  of  the  federal  judiciary —  with  due  respect,  but  most  solemnly  and 
earnestly  —  to  show  the  power  or  powers  that  make  them  and  their 
co-ordinates  "supreme  and  above  the  states"  that  gave  them  official 
existence ;  ratified  and  established  their  only  commission ;  and  exacted 
their  oath  to  obey  and  preserve  it. 

But  let  us  proceed  further  on  this  line,  and  ask  the  question,  in 
reference  to  the  "  terms  of  union,"  as  the  fathers  called  them,  or  the 
"  articles  of  union,"  to  use  the  federal  convention's  phrase  : 

"Who  is  to  Judge  of  Broken  Conditions  and  Forfeitures  ?  —  On 
reflection,  we  shall  see  that  when  South  Carolina  (or  Massachusetts) 
federalized  herself,  she  was  acting  with  her  own  will,  from  the  instinct 
and  with  the  duty  of  self-preservation,  under  the  direct  authority  of 
God,  Who,  by  making  the  social  instinct  a  part  of  man's  being,  cans 
society  as  much  as  He  did  man,  and  made  "  self-preservation  the  first 
law  of  nature"  for  both. 

Self-preservation  of  the  state,  then,  being  the  object  of  both  the 
grants  and  the  conditions,  who  is  to  judge  as  to  the  violations  of  tl 
conditions  and  the  forfeiture  of  the  grants,  the  grantor  or  the  grantee ' 
the  sovereign  or  the  subject  1  the  principal  or  the  agent  1  the  mast* 
or  the  servant  1  The  question  needs  no  answer.  The  God  of  nature 
has  determined  it  as  to  any  state  —  for  instance,  South  Carolina, 
New  York,  or  Massachusetts  —  by  making  self-preservation  the  first 
best,  and  most  imperative  law  of  her  being,  and  giving  her  a  distil 


THE  ULTIMATE  ARBITER.  357 

and  independent  intellect  with  which  to  investigate,  reason,  judge, 
and  will.  The  possession  of  mind  constitutes  the  moral  being,  and 
implies  moral  obligations.  The  state's  instinct  and  duty  of  self-preser- 
vation, like  her  bodily  and  mental  individuality,  continued  unchanged 
after  the  union  was  formed,  so  that  she  was  morally  compelled  to 
consider  and  decide  —  and  especially  in  the  last  resort  —  any  and  all 
questions  affecting  her  being,  her  integrity,  and  her  right  of  govern- 
ment. And  under  the  reciprocal  obligations  between  Massachusetts 
(or  South  Carolina)  as  a  body,  and  the  members  composing  her,  she 
is  to  govern  and  protect  them,  and  they  are  to  obey  and  support  her. 
These  duties  are  essential  to  the  republican  social  compact.  Her 
statehood  and  sovereignty  involve  their  liberty.  They  are  she,  and 
she  is  they.  This  compact  is  the  only  possible  tie  of  allegiance,  for 
the  state  stands  in  place  of  king,  prince,  or  feudal  lord.  [IV.  Kent, 
424.]  They  are  bound  to  defend  her,  and  she  them,  to  the  death. 
This  is  the  law  of  their  nature  and  of  God.  She  cannot  delegate  the 
power  to  decide  in  the  last  resort,  but  must  exercise  it  herself.  If 
she  do  not,  she  abandons  statehood,  and  becomes  a  province  or  county, 
gives  up  her  mental  nature  and  will,  neglects  the  highest  of  moral 
duties,  violates  the  sacred  law  of  her  God-given  being,  and,  in  a  word, 
commits  the  heinous  crime  of  suicide.  Hamilton  himself,  in  defend- 
ing the  present  federal  pact  against  the  "charge  of  consolidating  the 
states,  or  abating  their  ultimate  sovereignty,  said :  "  The  states 
are  essential  component  parts  of  the  new  system  "  —  "  The  destruc- 
tion of  the  states  would  be  political  suicide."  [II.  Ell.  Deb.  304,  353.] 
And  he  further  said  :  "  The  state  governments  will,  in  all  possible 
contingencies,  afford  complete  security  against  invasions  of  the  public 
liberty  by  national  authority.  In  a  confederacy,  the  people,  without 
exaggeration,  may  be  said  to  be  entirely  masters  of  their  own  fate." 
[Fed.  28.] 

The  Pact  Itself  agrees  with  the  above  Philosophy.  —  In  the  first 
place,  the  constitution  recognizes  throughout,  the  distinctness  of  indi- 
viduality, and  absolute  independence  of  organism,  mind,  and  will  of  the 
states ;  and  winds  up  by  providing  that  the  said  wills  are  to  "  ratify," 
and  thereby  "ordain  and  establish,"  the  instrument  and  the  govern- 
ment under  it ;  each  will  to  be  declared  by  a  convention.  [See  Arti- 
cle VII.  of  the  pact.] 

In  the  second  place,  it  provides  that  the  wills  of  states  are  to  amend. 
The  will  to  do,  and  that  to  undo,  must  be  equal.  The  power  to  repeal 
is  precisely  commensurate  with  that  to  ordain  and  enact.  The  will 
which  "ordained  and  established,"  necessarily  lived  through  the  act, 
and  continued  unimpaired,  so  that  it  could,  as  it  was  in  duty  bound 
to  do  continually,  consider  whether  the  constituted  government  did 


358       SOVEREIGNTY  IN  THE  UNITED  STATES. 

actually  "  provide  for  the  common  defence,"  and  "  promote  the  gen- 
eral welfare."  The'  wills  of  the  states  necessarily  survived,  looked 
back  on  the  system,  pronounced  it  good,  and  must  have  intended  to 
amend,  or  in  the  last  resort  abolish,  if  it  did  not  continue  good,  for 
they  provided  for  the  power  to  amend  (in  Article  V.),  which  includes 
in  its  nature  the  power  to  abolish.  If  the  states  are  compelled  to 
keep  that  which  their  respective  judgments  originally  approved,  and 
their  wills  adopted,  but  which  the  said  judgments  afterward  find  to 
be  bad  and  destructive,  surely  "tranquillity,"  "justice,"  "defence," 
"welfare,"  and  "liberty"  cannot  be  thereby  "provided  for"  and 
"  promoted."  [See  the  federal  preamble.] 

Both  political  philosophy  and  the  constitution,  then,  show  Massa- 
chusetts (or  South  Carolina)  to  be  a  complete  state  with  a  sovereign 
will.  Her  right  and  duty  of  self-preservation  are  absolute.  If  en- 
dangered, she  is  bound  to  defend  herself — "peaceably  if  she  can, 
forcibly  if  she  must."  1 

This  is  plain  common-s'ense ;  for  these  wills,  having  voluntarily  or- 
ordained,  could,  if  not  enslaved,  respectively  undo  what  they  had 
respectively  done.  It  was  never  denied  that  the  union  was  volun- 
tary when  made.  When,  and  by  what  act,  did  it  become  invol- 
untary? When  the  indissoluble  union  begins,  voluntariness  and 
freedom  end,  and  the  states  «re  back  precisely  to  the  provincial  condi- 
tion they  held  under  Britain.  So  that,  as  to  South  Carolina,  if  the 
powers  she  put  in  the  constitution,  and  the  forts  she  qualifiedly  granted 
the  sites  of,  and  permitted  to  be  built,  were  used,  or  attempted  to  be 
used,  for  her  harm  and  destruction,  instead  of  her  "defence  and 
safety,"  she  was  in  duty  bound  to  investigate,  judge,  and  will.  The 
gun  fired  at  Fort  Sumter  spoke  her  decree  annulling  the  federal 
tenure !  If  she  was  sincere  in  believing  her  being  and  sovereignty 
endangered,  it  was  rightful  and  righteous ! 

The  Expounders  Virtually  admit  this  Theory.  —  Webster  and 
the  federal  supreme  court  have  often  unwillingly,  or  perhaps  unwit- 
tingly, admitted  the  statehood  and  sovereignty  of  the  American  com- 
monwealths, and  their  consequent  absolute  right  of  self-preservation, 
and  especially  in  "  The  Bank  of  Augusta  vs.  Earle."  [13  Peters,  519.] 
In  this  case  they  said  the  federal  compact  only  included  and  settled 

i  In  1868,  at  the  Virginia  White  Sulphur  Springs,  W.  S.  Rosecrans,  A.  H.  Stephens, 
General  Lee,  and  others,  issued  a  political  document  to  influence  the  then  pending  election. 
Among  other  things  it  declared  that  the  South  had  given  up  forever  the  right  of  seces- 
sion. In  other  words,  they  had  alienated  or  parted  with  what  God  had  incorporated  in 
their  natures,  and  made  inalienable.  It  is  evident  that  the  declarants  did  not  under 
stand  the  source  and  nature  of  the  right.  However,  political  declarations  in  America 
are  intended  more  to  attract  votes  than  to  promulgate  truth.  Is  it  not  so  wherever  can- 
didates are  allowed  to  solicit  them  V 


THE  ULTIMATE  ARBITER.  359 

the  questions  it  provided  for,  leaving  all  others  outside,  to  be  settled 
under  and  according  to  the  jus  gentium,  i.  e.  by  diplomacy  or  force. 
This  admits  sovereign  states,  and  that  every  question  involving  the 
integrity  or  sovereignty  of  a  state  must  be  for  her  decision.  If  not, 
she  is  a  slave,  and  not  a  sovereign ;  and  she  violates  her  nature  if  she 
declines  the  decision,  or  the  enforcement  of  it. 

The  sovereignty  of  the  united  states  then,  to  use  the  expressions  of 
James  Wilson,  who  stated  the  views  of  the  fathers  on  this  subject, 
"  resides  in  the  people  "  as  they  are  organized,  i.  e.  it  dwells  in  com- 
monwealths ;  "it  never  leaves  them ; "  it  is  "  in  the  people  before 
they  make  a  constitution,  and  remains  in  them  after  it  is  made." 
[II.  Ell.  Deb.  432,  456.]  It  is  well  to  repeat  here  Mr.  Webster's 
admission  that  sovereignty  with  us  has  never  left  the  people,  and  that 
sovereignty  cannot  be  in  the  government :  also  Curtis's  admission,  that 
our  governments  are  only  "agents  and  depositaries"  of  authority. 

The  Guaranty  of  all  to  Preserve  Each.  —  The  following  clause 
(Art.  IV.  §  4)  was  especially  designed  to  secure  the  absolute  integrity 
and  sovereignty  of  each  commonwealth  :  "  The  united  states  shall 
guaranty  to  every  state  in  this  union  a  republican  form  of  govern- 
ment, and  shall  protect  each  of  them  against  invasion,  and  on  appli- 
cation of  the  legislature,  or  of  the  executive  (when  the  legislature 
cannot  be  convened)  against  domestic  violence."  This  clause  can  but 
mean  that  all  the  states  guaranty  each  to  be  and  to  remain  a  repub- 
lic ;  in  other  words,  that  she  (i.  e.  "  the  people  ")  shall  govern  entirely 
and  absolutely.  "  A  republican  form  of  government "  means  a  repub- 
lic ;  and  there  can  be  no  republic  unless  the  people  govern  themselves 
in  everything.1 

The  above-quoted  clause  means  precisely  what  the  second  article  of 
the  first  federal  constitution  meant,  to  wit :  that  "  each  state  retains 
[and  its  associates  are  to  guaranty]  its  sovereignty,  freedom  and  inde- 
pendence." It  means  that  the  state  is  to  govern  herself  as  to  her 
home  affairs,  and  that  the  states  are  to  govern  themselves  as  to  their 
general  affairs ;  and  finally,  it  means  that  state  wills  are  always  to  be 
supreme,  and  are  to  be  bound  in  union  only  by  virtue  of  voluntary 
engagements. 

The  reader  cannot  fail  to  notice  that  it  is  everywhere  protection  and 
defence,  and  not  attack  and  injury,  of  states,  that  the  federal  polity  is 
intended  for.  I  have  heretofore  shown  how  the  constitution  provides 
for  "  defence  "  of  the  states,  —  to  use  the  word  of  the  preamble.  We 

1  The  liberticides  of  America  pretend  that  keeping  up  the  "form  "  satisfies  the  obli- 
gation. So  they  rule  states  from  Washington,  while  keeping  up  simulacra  for  repub- 
lican governments.  All  will  admit  that  a  monarchical  form  means  a  monarchy;  an 
aristocratic  form  an  aristocracy;  and  "  a  republican  form  a  republic." 


360  SOVEREIGNTY  IN   THE   UNITED   STATES. 

have  heretofore  seen  that  the  cessions  of  occupancy  and  use  of  the 
sites  of  forts,  etc.,  made  by  the  states  and  accepted  by  "  the  united 
states,"  are  expressly  for  "  the  defence  and  safety  of  the  state ; "  the 
first  part  of  the  clause  under  consideration  "  guarantees  "  the  contin- 
ued existence  and  absolute  self-government  of  every  state  ;  and  finally, 
the  latter  part  of  the  clause  requires  "the  united  states"  to  "pro- 
tect "  each  of  the  states  "  against  invasion "  and  "  against  domestic 
violence."  In  short,  the  states,  in  making  the  constitution,  and  giving 
powers  to  their  administering  subjects,  could  but  intend  self-preservation 
and  self-defence. 

Expressio  unius  est  exclusio  alterius.  —  The  expression  of  a  case 
or  cases  where  the  agency  can  enter  the  state  with  force  and  arms,  is 
the  exclusion  of  all  other  cases.  The  government,  which  lives,  moves 
and  has  its  being  through  state  will,  and  is  subordinate,  can  only 
enter  states  vi  et  armis,  for  the  purposes  of  "defence"  and  "protec- 
tion" they  have  specified:  1.  To  protect  the  states  "against  inva- 
sion "  or  external  violence ;  2.  to  protect  them  "  against  domestic 
violence."  This  latter  is  only  to  be  when  the  state  legislature,  or 
(if  it  cannot  be  convened)  the  state  executive,  calls  for  it. 

It  is  certain,  then,  that  "  protection  "  and  preservation  of  the  state, 
are  held  in  view  throughout  the  federal  polity,  and  the  history  of  it. 
Every  act  of  the  government  must  be  in  favor  of,  and  not  against  the 
state.  This  all  the  fathers  taught,  and  all  the  states  intended. 

"  The  Government "  has  no  Right  to  Hold  the  States.  —  The  pre- 
tence that  there  is  in  the  general  government  a  superintending  and 
constraining  power  over  states,  is  false  arid  unphilosophical,  for  sove- 
reignty "resides  in,"  and  "never  leaves,"  "the  people;"  and  hence 
the  government  constituted  by  "  the  people  "  must  be  subordinate  to 
them,  whether  they  acted  as  states  or  as  a  nation.  The  audacious 
utterance  of  the  Philadelphia  convention  of  1866,  that  "the  govern- 
ment "  has  "  absolute  supremacy  "  over  allegiant  states,  is  alike  false, 
unconstitutional,  and  treasonable. 

To  make  out  its  case,  "the  government"  first  assumes  that  the 
union  is  indissoluble ;  and  secondly,  that  it  has  the  right  and  duty  ot 
preserving  the  said  union ;  that  is  to  say,  the  states  by  their  wills 
voluntarily  united  themselves,  and  in  the  same  act  created  an  agency 
to  keep  them  together  despite  their  wills,  by  whipping  them  with 
their  own  men  and  means,.  Virtually  "  the  government  "  says  to  "  the 
people,"  whose  creation  and  instrument  it  is  :  "You,  as  bodies,  came 
freely  and  voluntarily  together ;  but  you  shall  henceforth  be  pinned 
together  by  bayonets,  and  shall  use  your  minds  and  wills  no  longer, 
except  'so  far  as'  'the  supreme  law*  which  gives  'the  government' 
'  absolute  supremacy '  over  you,  permits." 


THE   ULTIMATE  ARBITER. 


361 


Any  semblance  of  governmental  control  of  the  political  people  is 
unprincipled,  and  the  exercise  of  such  control  is  usurpation  and 
flagrant  wrong ;  for  the  American  polity  is  founded  solely  on  man's 
right  of,  and  capacity  for,  self-goverimient.  This  necessarily  implies 
self-organization  and  self-rule  of  commonwealths,  and  the  right  to 
fail  in  and  abandon,  as  well  as  that  to  succeed  in  and  continue,  any 
given  political  or  other  experiment.1  Such  enforced  supremacy  of 
"  the  government "  reduces  the  states  to  counties,  nullifies  their  revo- 
lution of  1776,  and  remands  them  to  colonial,  or  rather  provincial, 
vassalage. 

1  Washington,  Franklin,  and  all  the  fathers  considered  and  called  the  present  federal 
system  an  experiment.  Indeed,  all  human  systems  must  be  such,  owing  to  the  finite 
wisdom  which  makes  them.  This  is  why  Massachusetts  and  other  states  declare,  what 
indeed  common-sense  teaches:  that  "that  the  people  alone  have  an  incontestible  in- 
alienable and  indefeasible  right  to  institute  government,  and  to  reform,  alter  or  totally 
change  the  same  when  their  protection,  safety,  prosperity,  and  happiness  require  it." 


CHAPTEE  XII. 


THE  TRUE  CHARACTER  OF  THE  GOVERNMENT. 

BY  the  action  of  their  wills,  the  states  give  existence,  life,  and 
power  to  the  visible  government,  and  at  the  same  time,  and  in 
the  same  act,  they  federalize  themselves.  No  possible  political  will 
could  delegate  or  grant,  but  that  of  the  state,  while  the  only  possible 
grantee  is  the  federation  of  states.  "  The  government "  —  so  called 
—  cannot  have  any  capacity  to  be  a  grantee,  for  decisive  reasons 
which  will  now  be  presented. 

"  The  government  of  the  united  states,"  like  that  of  any  state,  is 
tripartite,  i.  e.  three  institutions,  co-existing,  but  independently  acting. 
It  was  not  constituted  a  unit,  so  as  to  be  a  moral  person,  with  a  mind 
and  a  will.  The  "  unity  of  government "  which  Washington  spoke  of, 
simply  meant  one  system  for  all  the  states  —  without  reference  to  its 
character  —  which  should  effectually  provide  for  the  "common  de- 
fence "  and  "  general  welfare  "  of  "  the  people  "  as  organized. 

To  get  a  definite  conception  of  the  system,  let  us  see  how  distinct 
and  exclusive  these  institutions  appear  in  the  federal  pact.  Article  I. 
declares  that  "  all  legislative  powers  herein  granted  shall  be  vested  in 
a  congress  of  the  united  states ; "  Article  II.  declares  that  "  the  execu- 
tive power  shall  be  vested  in  a  president  of  the  united  states ; "  and 
Article  III.  declares  "  the  judicial  power  of  the  united  states  shall  be 
vested  in  one  supreme  court "  and  subordinate  courts. 

Keeping  these  articles  under  view,  the  following  diagram  enables 
the  mind  to  see  the  individuality  of  these  created  entities  to  be  as 
distinct,  and  their  action  as  independent,  as  if  they  were  separated  by 
adamantine  walls,  and  each  harnessed  in  steel. 


EXECUTIVE 
DEPARTMENT. 


LEGISLATIVE 
DEPARTMENT. 


JUDICIAL 
DEPARTMENT. 


THE  TRUE  CHARACTER  OF  THE  GOVERNMENT.        363 

The  founders  of  institutional  liberty,  knowing  the  tendency  of  all 
government  towards  tyranny,  recognized  this  natural  separateness  of 
these  governmental  functions  and  agencies,  and  in  some  constitutions 
expressed  and  carefully  guarded  it.  [See  the  constitution  of  Massa- 
chusetts.] Their  aim,  especially  in  forming  the  federal  government, 
was  to  subject  every  measure  of  the  rulers  to  several  successive  and 
independent  examinations,  tests  and  vetoes,  so  as  to  ensure  the  wisest 
and  most  efficient,  and  at  the  same  time  the  most  conservative,  efforts 
to  secure  "tranquillity,"  "justice,"  "defence,"  "welfare,"  and  "lib- 
erty," and,  above  all,  to  prevent  the  injury  or  destruction  of  the  great 
palladium  of  all  these  blessings  —  the  American  constitutional  polity. 
This  is  precisely  the  theory  of  those  "  checks  and  balances  "  so  many 
talk  of,  and  so  few  seem  to  understand  and  properly  appreciate. 

The  three  agencies  under  review  are  the  mere  mouthpieces,  instru- 
ments, tools,  or  slaves  of  their  creator,  owner,  master,  and  sovereign 
—  the  league  of  commonwealths,  "  the  united  states,"  "  the  people  " 
— to  speak  and  effectuate  the  legislative,  executive,  or  judicial  will,  as 
the  case  may  be,  of  the  said  sovereignty. 

The  Unheeded  Form  of  Consolidation  is  the  Worst.  —  Now  the 
most  dangerous  form  of  consolidation  in  America  is  that  which  is 
least  noticed  and  guarded  against,  if  ever  thought  of,  and  that  is  the 
breaking  down,  by  these  agencies,  of  the  walls  separating  them ;  their 
getting  together  and  acting  covertly  with  one  mind,  under  the  great- 
est temptations,  without  check  and  without  responsibility ;  or  what 
amounts  to  the  same,  the  gradual  gaining  by  one  of  them  of  a  mas- 
tery over  the  others,  so  as  to  get  undivided  sway.  In  either  case 
"  the  government "  becomes  a  unit,  and  a  corporate  despot  of  the  vil- 
est imaginable  character.  If  it  did  not,  it  would  be  superhuman. 

Reasons  why  it  cannot  be  a  Grantee.  —  The  only  seat  of  that 
"  endowment  of  the  soul "  called  "  will,"  which  must  be  used  in  gov- 
ernment, is  in  "  the  people  "  as  organized,  and  "  it  never  leaves  them." 
Their  right  of  freely  exercising  it,  is  sovereignty.  Not  only  is  this 
"  faculty  of  the  soul "  resident  in  the  people,  but  the  government  has 
no  will,  because  it  has  no  unity,  and  no  corporate  mind.  Hence  it 
cannot  be  a  grantee  of  powers,  rights,  or  anything  else ;  but  its  ca- 
pacity is  simply  that  of  an  agent,  or  trio  of  agents,  who  hold  nothing 
of  right,  must  do  as  told,  and  remain  abjectly  submissive,  so  that 
without  resistance,  or  even  murmur,  it,  or  they,  can  be  kicked  out  of 
the  way  whenever  the  mighty  mind  of  the  people  shall  move  their 
mighty  foot  to  that  end.1 

Again,  "  the  government "  is  never  mentioned  as  grantee,  while  the 

1  The  federal  supreme  court  said  "the  constitution  was  written  by  the  mighty  hand 
of  the  people."  Why  then  can  they  not  have  and  use  a  mighty  foot  ? 


364  SOVEREIGNTY  IN   THE   UNITED  STATES. 

association  called  "  the  united  states  "  always  is.  All  titles  to  federal 
property,  and  to  the  occupation,  use  and  jurisdiction  of  federal  foot- 
holds—  as  has  been  shown  —  are  made  by  the  respective  states,  and 
to  the  "  united  states."  Nay,  more,  the  tenth  amendment  declares 
expressly  that  all  the  powers  in  the  constitution  are  "  delegated  to  the 
united  states" 

Again,  there  is  no  grant  whatever  in  the  sense  of  alienation ;  but 
powers  are  delegated,  i.  e.  entrusted  to  be  used  for  the  owners,  "  the 
people  '  —  the  users  necessarily  being  "  agents "  and  "  servants." 
The  expounding  words  "cede,"  "surrender,"  "part  with,"  "relin- 
quish," etc.,  that  mean  alienate,  are  quibbles,  subterfuges,  and  falla- 
cies ;  and  they  are  found  in  the  writings  of  every  "  expounder." 

Again,  the  language  of  the  pact  shows  everything  still  to  belong  to 
the  states.  Note  the  numerous  possessive  phrases  —  "the  govern- 
ment of  the  *  states;"  "  the  treasury  of  the  *  states;"  "the  army 
and  navy  of  the  *  states;"  "the  territory  and  other  property  of 
the  *  states,"  etc. 

Again,  the  government  could  not  be  the  grantee,  because  it  did  not 
have  a  being  till  long  after  the  constitution  had  been  completed  by 
the  only  parties  that  then  existed,  or  could  exert  will  upon  it,  and 
the  association  of  states  had  been,  ipso  facto,  formed.  In  the  fall  of 
1 788,  the  congress  of  states  declared  the  new  federalizing  instrument 
to  be  complete,  according  to  its  tenor,  by  "the  ratification  of  the  con- 
ventions of  nine  states  .  .  .  between  the  states  so  [i.  e.  by  conven- 
tions] ratifying  the  same;"  and  the  said  congress  provided  for 
carrying  it  into  effect,  by  notifying  their  constituents,  the  states,  of 
the  "  sufficient "  "  establishment,"  and  recommending  that  they  should 
elect  their  government.  Whereupon  the  respective  state  legislatures 
passed  laws  for  elections.  In  accordance  therewith,  the  states  elected 
their  own  subjects  as  senators;  their  own  subjects  as  representatives; 
their  own  subjects  as  electors  to  elect  the  president.  And  when,  in  the 
spring  of  1789,  the  elected  persons,  as  subjects,  representatives,  and 
agents  under  the  law,  had  organized  themselves  to  work  in  the  voca- 
tion whereunto  called,  the  government  for  the  first  time  existed ;  and, 
as  shown,  it  had  no  unity  of  body  or  mind,  no  will,  no  inherent  and 
original  rights  and  powers,  but  was  composed  entirely  of  subjects 
and  agents  who  remained  individually  and  collectively  under  the  law, 
whether  home  or  general,  constitutional  or  statutory. 

What !  are  these  mighty  "  government "  men  under  state  constitu- 
tions and  laws  ?  Yea,  verily,  even  under  the  laws  of  town  councils,  if 
applicable.  Let  the  president,  or  all  his  government,  go  into  Gettys- 
burg and  violate  an  ordinance,  and  he  would  learn  the  fact.  The 
wills  of  the  states  have  declared  the  federal  law  to  be  supreme. 


THE  TRUE  CHARACTER  OF  THE  GOVERNMENT.    3G5 

What  conflicts  is  no  law.  What  does  not  conflict  is  law,  and  binding 
even  on  the  proudest  magnate  or  corporation  in  the  land,  whether 
governmental  or  not. 

How  then  could  this  poor  agency,  instrument,  or  machine,  be  a 
party  to  the  compact,  and  the  grantee  of  delegations,  of  federal 
tenures  of  property,  and  of  the  use  and  occupation  of  sites  for  forts, 
navy-yards,  etc.  1  The  idea  is  absurd.  It  was  the  league  or  federa- 
tion that  was  grantee.  Each  state  granted  to  the  states,  as  is  proved 
by  the  tenth  amendment,  providing  that  all  powers  not  delegated  to 
the  united  states,  are  reserved.  And,  I  repeat,  every  grant  was  a 
delegation  or  giving  in  trust,  and  not  an  alienation.  As  Judge  Parsons 
said,  "  The  people  divest  themselves  of  nothing."  Said  Judge  Marshall, 
in  the  ratifying  convention  of  Virginia :  "  Federal  and  state  officers 
are  alike  servants  of  the  people,  who  hold  their  powers  in  their  own 
hands,  and  delegate  them  cautiously  for  short  periods,  to  their  ser- 
vants, who  are  accountable  for  the  smallest  maladministration."  [II. 
Ell.  Deb.  89  ;  III.  Ibid.  232.] 

A  Misleading  Misnomer.  —  The  phrase,  "  the  government "  —  par- 
ticularly when  the  big  G  is  used  —  misleads  the  unthinking,  unless 
the  purely  derivative,  delegative,  and  agential  character  of  the  insti- 
tution so  named,  is  kept  in  view ;  for  the  real  government  of  the 
republic,  or  of  any  republic,  is  necessarily  the  state  itself —  the  so- 
called  government  being  a  mere  agency  or  commission,  created  by  the 
people,  and  empowered  by  them  to  administer  their  governmental 
affairs.  The  American  bodies-politic  govern  themselves,  —  separ- 
ately in  domestic,  and  unitedly  in  general  affairs.  They,  then,  are  the 
government.  Hence  it  is  that  the  first  article  of  the  constitution,  as 
unanimously  adopted  by  the  convention  of  1787,  and  never  reconsid- 
ered, though  left  out  by  the  revising  committee,  reads  as  follows  : 
"  Article  I.  The  style  of  this  government  shall  be  the  United  States 
of  America."  "The  government,"  then,  is  "the  United  States." 
And,  in  the  nature  of  things,  the  government  of  each  republic  is  the 
republic  itself,  while  the  government  of  the  united  republics  is  the 
united  republics  themselves. 

Let  us  Symbolize  the  Polity.  —  The  whole  subject,  then,  in  all 
its  parts,  being  matter  of  fact  or  inference,  we  can  present  the  grades 
and  impartations  of  authority,  as  is  done  on  pages  295-297  supra. 

1.  Suppose  thirteen  or  more  figures  in  a  horizontal  line  to  symbol- 
ize the  organizations  of  people  named  in  the  constitution,  and  those 
since  admitted.  Part  of  the  people  were  named  Massachusetts ;  part 
Delaware  ;  part  Georgia ;  and  so  of  the  rest.  The  original  common- 
wealths are  still  so  named,  and  are  unchanged ;  and  the  new  ones 
are  their  political  equals. 


366  SOVEREIGNTY  IN  THE   UNITED   STATES. 

2.  Next  below,  suppose  the  same  figures  to  be  grouped  as  the 
united  states,  and  a  line  to  be  drawn  from  each  of  the  above  states 
to  this  association,  to  indicate  the  delegating  of  power,  by  each  state, 
to  the  union  of  them.     Each  state  is  the  delegator,  and  all  of  them 
united  are  the  delegatee. 

3.  In  the  third  grade,  let  us  suppose  a  threefold  figure  to  repre- 
sent the  three  co-ordinate  institutions  which  form  the  federal  agency 
of  government,  through  which  the  individual  people  are  ruled.    This 
figure  shows  "  the  government  of  \i.  e.  belonging  to]  the  united  states," 
subordinate  to  the  said  states,  of  course. 

4.  At  the  bottom  we  might  place  a  figure  to  represent  the  same 
people  that  we  see  atop,  but  in  their  capacity  as  subjects,  the  repub- 
lican idea  of  self-government  requiring  that,  while  they  appear  at  the 
top,  and  above  the  institutions  of  government,  in  a  corporate  and  sove- 
reign capacity,  they  should  also  appear  below  the  said  institutions  in 
an  individual  and  subject  one. 

This  process  will  lastingly  impress  the  reader  with  the  grades  of 
our  system —  1.  the  sovereign  societies  of  people  associated  ;  2.  their 
governmental  "  agents  and  depositaries  of  power,"  as  Mr.  Curtis  calls 
them  —  the  congress,  president,  and  judiciary;  3.  the  members,  citi- 
zens, or  subjects  of  the  states,  and  their  belongings.  The  first  are  the 
sovereign  people,  the  last  the  subject  people. 


CHAPTEE  XIII. 

FACTS  MUST  PREVAIL. 

UNLESS  we  wish  plain  facts  of  history  and  the  sacred  records  of 
our  country  to  be  subjects  of  contention  forever,  we  must  make 
up  distinct  issues,  and  charge  either  the  sons  or  the  sires  with 
deliberate  falsehood. 

Let  those  who  Devised  describe  the  Polity.  —  The  sires  who 
planned  our  constitution  of  general  government  described  it  as  fol- 
lows. Apology  for  repetition  can  hardly  be  necessary  :  — 

ALEXANDER  HAMILTON  said  the  present  union  is  "  an  association  of 
states  or  a  confederacy;"  and  that  "the  people  of  New  York  are  the 
sovereigns  of  it"  [Fed.  IX.;  his  address,  1789].  CHANCELLOR  LIV- 
INGSTON said  our  general  polity  is  "  a  league  of  states  "  [II.  Ell.  Deb. 
274].  JOHN  JAY  said  "the  states  adopted"  "the  present  plan;" 
and  that  it  is  a  "union  of  states  "  [I.  Ell.  Deb.  496  ;  II.  Ibid.  282]. 
JAMES  MADISON  said  "the  states  are  regarded  as  distinct  and  inde- 
pendent sovereigns  "  "  by  the  constitution  "  [Fed.  XL.].  GENERAL 
WASHINGTON  wrote  of  the  constitution  as  a  "  compact  or  treaty ; "  and 
the  union  formed  by  it  as  "  the  new  confederacy  "  [Let.  to  Gen.  Pinck- 
ney,  June  28,  1788 ;  do.  to  D.  Stuart,  Oct.  17,  1787].  DR.  FRANKLIN 
said  the  senate  was  to  secure  in  the  union  "  the  sovereignties  of  the 
individual  states  "  [V.  Ell.  Deb.  266].  JAMES  WILSON  said  the  sove- 
reignty "  is  in  the  people  before  they  make  a  constitution,  and  remains 
in  them  after  it  is  made,"  and  that  the  said  people  are  "  thirteen  inde- 
pendent sovereignties  "  [II.  Ell.  Deb.  443 ;  Mass.  Centinel,  Oct.  24, 
1787].  JOHN  DICKINSON  called  the  new  political  system  "a  confed- 
eracy of  republics,"  and  he  recognized  therein  "  the  sovereignty  of  each 
state"  [II.  Pol.  Writings  of  J.  D.,  107].  GOUVERNEUR  MORRIS  said 
the  constitution  was  "  a  compact  .  .  .  between  political  societies,  .  .  . 
each  enjoying  sovereign  power"  [III.  Life  of  M.,  193].  ROGER  SHER- 
MAN said  "  the  government  .  .  .  was  instituted  by  a  number  of  sove- 
reign states  "  [see  his  Letter  to  John  Adams  in  VII.  Writings  of  J.  A.]. 
OLIVER  ELLSWORTH  called  the  states  "  sovereign  bodies  "  [II.  Ell.  Deb. 
197].  TENCH  COXE  said  the  union  was  of  "separate  sovereignties, 


368  SOVEREIGNTY  IN  THE  UNITED  STATES. 

joining  in  a  confederacy"  [Am.  Mus.  160,  244].  CHANCELLOR  PEN- 
DLETON,  the  president  of  the  Virginia  ratifying  convention,  said  the 
people  of  Virginia  were  "  the  fountain  of  all  power,"  and  that  the  new 
system  was  "uniting  the  strength  of  thirteen  states,"  each  state  "a 
sovereign  state  "  [III.  Ell.  Deb.  297,  549].  JOHN  MARSHALL  (after- 
wards chief  justice)  spoke  of  the  state  in  the  union  as  "the  sovereign 
power  "  [III.  Ell.  Deb.  555].  SAMUEL  ADAMS  said  "each  state  retains 
its  sovereignty  "  in  the  present  union  [II.  Ell.  Deb.  131].  GOVERNOR 
JAMES  BOWDOIN  spoke  of  the  union  as  "  a  confederacy ; "  and  of  the 
states  as  "distinct  sovereignties"  [II.  Ell.  Deb.  129].  See  also,  to 
the  same  effect,  the  utterances  of  JAMES  IREDELL  [IV.  Ell.  Deb.  133]; 
FISHER  AMES  [II.  Ell.  Deb.  46] ;  THEOPHILUS  PARSONS  [see  his  Life, 
p.  98] ;  CHRISTOPHER  GORE  [II.  Ell.  Deb.  18] ;  GEORGE  CABOT  [II.  Ell. 
Deb.  26]. 

The  fathers,  then,  describe  the  American  political  system  as  a 
federation  of  sovereignties. 

The  Sons  contradict  the  above  Statements.  —  The  Philadelphia 
convention,  in  1866,  declared  that  the  states  were  unified  into  a  nation 
or  commonwealth  of  people,  were  degraded  to  counties,  and  were  sub- 
ordinated and  made  allegiant  to  "  the  government,"  which  was  pos- 
sessed of  "absolute  supremacy";  and  did,  with  tolerable  accuracy, 
express  the  views  of  Dane,  Story,  Webster,  Curtis,  Greeley,  Jameson, 
Pendleton,  Adams,  Lincoln,  Johnson,  et  id  omne  genus.  The  constitu- 
tion, said  Mr.  Webster,  in  his  speech  of  1833,  makes  us  one  undivided 
people, — a  nation,  —  and  "effectually  controls  state  sovereignty." 
The  states  have  only  such  status  and  rights  as  the  national  consti- 
tution gives  them,  said  Mr.  Lincoln.  We  are  changed  from  a  league 
of  states  to  a  nation  of  provinces,  say  they  all,  including  Story  and  the 
federal  supreme  court.  In  1876,  just  one  hundred  years  after  the 
states  declared  that  they  ceased  to  be  provinces,  and  became  sove- 
reigns in  place  of  England,  these  "agents  and  depositaries  "  ["I  thank 
thee,"  Mr.  Curtis,  for  these  words]  of  "  the  judicial  power  of  the  united 
\i.  e.  associated]  states  "  declare  "  the  government  "  [of  which  they  are  a 
part]  to  be,  "  within  the  scope  of  its  powers,"  [and  all  these  "  agents 
and  depositaries  "  agree  that,  on  all  disputed  questions  of  power,  they 
are  the  ultimate  arbiters],  "supreme  and  above  the  states"  and  "en- 
dowed with  all  the  powers  necessary  for  its  own  preservation  "  /  Start- 
ling idea !  the  creature  can  maintain  its  existence  against  any  and  all 
of  its  creators ! 

The  Subject  is  Exclusively  one  of  Fact.  —  The  subjects  of 
affirmation,  in  all  these  propositions,  are  subjects  of  fact  and  technical 
description,  about  which  it  is  impossible  for  such  men  as  I  have  named 
to  speak,  pro  and  con,  innocently.  They  are  all  the  most  competent 


FACTS  MUST  PREVAIL.  309 

witnesses  the  earth  could  afford,  and  all  of  them  have  made  these 
questions  of  historical  fact  and  testimony,  special  studies.  They  saw 
and  knew  what  they  were  talking  about.  It  is  quite  as  justifiable  for 
such  men  to  say  white  is  black,  or  night  is  day,  as  to  affirm  that  sepa- 
rate states  are  an  undivided  nation,  or  that  the  league  of  common- 
wealths is  a  single  state.  There  can  be  no  escape  from  the  charge 
that  either  the  sons  or  the  sires  have  wilfully  "borne  false  witness." 
It  is  for  the  American  people  to  decide  which. 

Construction  or  interpretation  has  here  no  place,  though  it  is  a 
common  trick  or  subterfuge  to  interpret,  in  order  to  avoid  plain  words, 
and  most  lucid  contemporaneous  exposition.  Legislative,  executive, 
or  judicial  construction  is  proper,  where  those  charged  with  duty  find 
ambiguity  or  doubt  in  the  meaning  and  intent  of  the  words  of  their 
"  powers."  But  the  system  was  described  as  a  fact,  was  recognized  as 
a  technical  thing  by  all  publicists,  and  was  impressed  on  all  men,  and 
on  the  historic  page,  without  reference  to  the  acts  of  its  government, 
and,  indeed,  before  that  institution  was  in  esse.  The  system  was  estab- 
lished and  describable  in  1788,  and  was  characterized  by  the  fathers  as 
above,  while  the  government  was  elected,  and  began  to  exist  and  act, 
only  in  1789.  In  1788,  it  was  a  voluntary  "  union  of  states ;  a  volun- 
tary federation  of  sovereigns  ;  a  voluntary  REPUBLIC  OP  REPUBLICS." 

The  Question  Americans  cannot  Evade.  —  I  have  now  presented 
the  American  polity,  its  history,  and  its  philosophy,  and  placed  the 
statements  of  the  sires  in  contrast  with  those  of  the  sons.  The  as- 
sertions are  directly  opposed.  Between  them  "  the  people  "  must 
decide ;  for,  by  choosing  to  be  republics,  they  have  assumed  the  right 
and  the  responsibility  of  settling  all  questions.  Is  the  general  polity 
a  union  of  people,  or  a  union  of  states  —  a  nation  or  a  confederacy? 
And  is  the  "  absolute  supremacy  "  of  the  country  in  "  the  govern- 
ment," or  is  it  in  "  the  people  "  as  organized  1 

Americans  will  realize  the  wrong-doings  of  their  "  expounders  "  by 
reflecting,  first,  that  the  government  in  1789  was  entirely  derivative, 
its  authority  being  purely  delegative  and  agential ;  second,  that,  in- 
stead of  being  since  increased,  its  authority  was  diminished,  or  more 
carefully  restricted,  especially  by  the  Ninth,  Tenth,  and  Eleventh 
Amendments ;  third,  that  it  now  claims  and  enforces  "  absolute  su- 
premacy" over  allegiant  states,  and  declares  that  these  have  no  status 
or  rights  except  such  as  are  "  reserved  to  them  "  by  the  nation  in  its 
"  supreme  law." 

A  Hint  to  England  and  the  American  Provinces.  —  It  seems, 
from  our  recent  history,  advisable  to  go  back  to  the  old  faith,  or  to 
the  old  sovereign.  As  the  American  states,  by  permitting  their  quon- 
dam federal  agency  or  commission  to  fasten  absolutism  on  them,  have 

24 


370  SOVEREIGNTY  IN  THE   UNITED   STATES. 

provincialized  themselves,  would  it  not  be  well,  in  case  they  do  not 
wish  to  retake  sovereignty,  to  propose  to  England  a  new  Anglo- 
American  treaty,  and  stipulate  therein  to  be  reincorporated,  and  re- 
stored to  their  ancient  provincial  privileges,  in  that  glorious  old 
commonwealth,  whose  polity,  like  her  flag,  has  braved  for  a  thousand 
years  the  battle  and  the  breeze,  —  a  polity,  as  her  fond  sons  be- 
lieve, at  once  free,  permanent,  and  unassailable,  being,  as  Tennyson 
writes,  — 

"  Broad-based  upon  the  people's  will, 
And  compassed  by  the  inviolate  sea"  ? 


PART  V. 

CITIZENSHIP,  ALLEGIANCE,  AND  TREASON  IN 
THE  UNITED  STATES. 


PAKT  V. 

CITIZENSHIP,  ALLEGIANCE,  AND   TREASON  IN 
THE   UNITED    STATES. 


CHAPTEE  I. 

"THE  PEOPLE"  ARE  SOVEREIGN  STATES. 

TREATING  the  matter  in  the  main  historically,  or  rather  by 
quoting  the  statements  and  opinions  of  the  fathers,   I   shall 
maintain  the  following 

Fundamental  Principles.  —  I.  The  people  are  the  states,  and,  as 
such,  they  compose  whatever  nation  there  is ;  and  the  general  govern- 
ment is  the  agency  of  the  states,  by  and  through  which  they  exercise 
federal  self-government. 

II.  The  fathers  contemplated,  and  tried  to  forefend,  the  danger  of 
the  federal  delegative  authority  increasing,  to  the  control  and  final 
destruction  of  the  states. 

III.  Federal  acts,  outside  of  'delegated  powers,  were  to  be  treated 
as  nullities,   and,  if  attempted  to  be  enforced,   resisted  as  usurpa- 
tions. 

IV.  The  federal  government  is  not  only  without  authority,  but  is 
actually  prohibited,  to  coerce  the  state  with  arms,  by  legislation,  or 
even  judicially. 

V.  The  states  in  the  union  have  the  unlimited  right  of  self-defence, 
even,  if  need  be,  against  the  federal  agency. 

VI.  To  defend  the  state  with  arms,  in  obedience  to  her  will,  is  the 
duty  of  the  member  or  citizen,  and  is  not  treason  in  any  sense,  but 
is  true  loyalty. 

The  reader  will  find  the  corollaries  or  considerations,  involved  in 
this  last  and  most  important  point,  stated  at  the  beginning  of  Chapter 
VI.,  infra;  and  he  should  by  all  means  read  them  now,  for  thereby 
he  can  see,  and  measurably  appreciate,  the  scope,  if  not  the  pith,  of 
the  whole  great  argument.  The  last  point  (VI.)  is  the  citadel  of 
American  institutional  liberty ! 


374  CITIZENSHIP,   ALLEGIANCE,  AND  TREASON. 


The  States  are  the  People  and  Polity. 

POINT  I.  —  The  people  are  the  states,  and,  as  such,  they  com- 
pose whatever  nation  there  is  ;  and  the  general  government  is 
the  agency  of  the  states,  by  and  through  which  they  exercise 
federal  self-government. 

The  people  are  states,  and  are  sovereign,  for  they  are  republics,  or 
self-governing  bodies  of  people.  They  were  never  organized  otherwise. 
Nor  have  they  any  capacity  for  political  action,  except  as  states ;  and 
it  is  they  (and  not  their  government,  local  or  general),  that  hold, 
inherently  and  ab  origine,  the  sovereign,  exclusive,  and  unqualified  right 
and  power  to  govern  all  the  people  and  territory  within  them.  Just 
as  they  pre-existed,  they  were  named  and  provided  for  in  the  federal 
constitution,  as  well  as  recognized  as  the  sole  parties  to  and  actors 
under  it ;  and  the  identical,  original  states  now  exist,  unchanged  in 
any  particular. 

And  the  general  government  is  their  agency,  for  it  is  made  up  per- 
sonally of  their  subjects,  and  it  only  possesses  and  acts  by  derivative 
and  delegative  power. 

All  the  foregoing  parts  of  this  work  are  devoted  to  the  proof  of  the 
above  proposition,  so  that  I  shall  content  myself  here  with  two  or 
three  decisive  quotations,  fully  covering  the  ground,  simply  to  indi- 
cate this  link  of  the  chain,  while  emphasizing  and  reimpressing  the 
vital  truth  it  involves. 

Said  DANIEL  WEBSTER,  in  his  speech  of  1833:  "The  sovereignty 
of  government  is  an  idea  belonging  to  the  other  side  of  the  Atlantic. 
No  such  thing  is  known  in  North  America.  .  .  .  But  with  us,  all 
power  is  with  the  people.  They  alone  are  sovereign,  and  they  erect 
what  governments  they  please,  and  confer  on  them  such  power  as  they 
please." 

GEORGE  TICKNOR  CURTIS  states  it  as  "  the  American  doctrine  "  that 
all  supreme  power  resides  originally  in  the  people,  and  that  all  gov- 
ernments are  constituted  by  them  as  the  agents  and  depositaries  of 
that  power.1 

To  the  same  effect,  I  quote  from  among  numerous  authorities 
before  me,  JAMES  WILSON'S  statement  in  the  Pennsylvania  ratifying 
convention  :  "  The  supreme,  absolute,  and  uncontrollable  power  is  in 
the  people,  before  they  make  a  constitution,  and  remains  in  them 

1  "  Agents  "  do  not  act,  or  "  depositaries  "  hold,  for  themselves.  Hence,  Mr.  Curtis 
is  solecistic  in  saying,  as  he  does  or  seems  to  do,  that  they  are  the  depositaries  of  sove- 
reign authority,  instead  of  "powers"  delegated  by  the  said  authority.  I  accept  his 
truth  as  an  admission,  and  reject  his  mistake. 


"THE  PEOPLE"  ARE   SOVEREIGN   STATES.  375 

after  it  is  made.  .  .  .  The  sovereignty  resides  in  the  people,  and  it 
never  leaves  them."  [II.  Ell.  Deb.  432,  et  seq.~\ 

He  meant  the  people  as  organized  in  societies  or  commonwealths, 
and  not  as  a  nation,  for  he  spoke  of  "  thirteen  independent  sovereign- 
ties "  as  the  parties  then  deliberating  and  acting.  [Mass.  Centinel, 
Oct.  24,  1787  ;  Am.  Mus.,  Vol.  L] 

I  conclude  this  point  by  referring  to  the  numerous  quotations  made 
heretofore  from  Hamilton,  Madison,  Washington,  Franklin,  Adams, 
and  the  rest  of  the  fathers,  especially  in  Chapter  VII.  of  Part  L,  and 
by  repeating  that  the  people  are  the  states,  and,  as  such,  they 
compose  whatever  nation  there  is  ;  and  the  "  general  government " 
is  the  agency  of  the  states,  by  and  through  which  they  exercise 
federal  self-government.  Q.  E.  D. 


CHAPTEE  II. 

FEDERAL  USURPATION  TO  BE  FEARED  AND  OPPOSED. 

"POINT  II.  —  The  fathers  contemplated,  and  tried  to  f oref end, 
JL  the  danger  of  the  federal  delegative  authority  increasing,  to 
the  control  and  final  destruction  of  the  states. 

The  use  of  undelegated  power  by  the  federal  government,  or  the 
individuals  thereof,  involves  their  perjury  and  treason,  for  they  are 
all  sworn  to  support  and  obey  the  constitution,  —  such  oath  being,  in 
effect,  to  use  granted,  and  not  use  ungranted,  powers,  —  the  latter 
being  " retained,"  or  "reserved,"  by  the  sovereigns  as  their  most 
precious  treasures.  And  it  was  never  dreamed  of  that  federal  officers 
—  the  elect  of  the  people,  and  "the  excellent  of  the  earth"  —  could 
ever  become  such  villains  as  to  perjure  themselves,  and  thus  deprive 
the  people  of  the  great  security  against  usurpation  referred  to  by 
Webster  when  he  said :  "  The  constitution,  to  preserve  itself,  lays  hold 
of  individual  conscience  and  individual  duty.'"  The  tendency  and  end 
of  such  federal  increment  is  necessarily  to  degrade,  and  finally  to  over- 
throw and  destroy,  the  sovereigns  of  the  country.  Unfortunately, 
encroachments  on  reserved  powers  in  a  republic  are  insidious  and 
unappreciated,  until  their  sum  amounts  to  revolution  and  the  loss  of 
liberty  ! 

When  the  federalizing  of  the  states  was  under  discussion,  the  great 
fear  was  that  the  general  government  might  transcend  its  granted 
powers,  to  nationalize  or  consolidate  them.  The  vehement  attacks  of 
Henry,  Mason,  Martin,  Lowndes,  Yates,  and  others,  were  nearly 
fatal.  Every  advocate  of  the  new  plan  insisted  on  federalizing  the 
states,  and  disavowed  and  denounced  the  idea  of  consolidating  or 
nationalizing  them.  For  example,  the  great  FISHER  AMES  said,  in  the 
Massachusetts  ratifying  convention:  "No  argument  against  the  new 
plan  has  made  a  deeper  impression  than  this,  that  it  will  produce  a 
consolidation  of  the  states.  This  is  an  effect  which  all  good  men  depre- 
cate. .  .  .  The  state  governments  are  essential  parts  of  the  system. 
.  .  .  The  senators  represent  the  sovereignty  of  the  states  ...  in  the 
quality  of  ambassadors  of  states.  .  .  .  A  consolidation  of  the  states 


FEDERAL  USURPATION  TO  BE  FEARED  AND  OPPOSED.     377 

would  subvert  the  new  constitution,  against  which  this  very  article  [that 
providing  for  senators  to  serve  six  years]  is  our  best  security.  Too 
much  provision  cannot  be  made  against  consolidation"  Said  CHAN- 
CELLOR PENDLETON,  in  the  convention  of  Virginia,  in  reference  to  this 
very  objection  :  "  If  this  be  such  a  government,  I  will  confess  with  my 
worthy  friend  [Patrick  Henry]  that  it  is  inadmissible"  Similarly 
spoke  others,  in  all  the  principal  ratifying  and  delegating  states ;  and 
no  friend  of  the  constitution  ever  dissented.  The  advocates  of  the 
plan,  admitting  that  the  federal  functionaries  were  to  be  (not  angels 
—  but)  men  of  average  weakness  and  wickedness,  showed  the  danger 
to  be  much  overrated,  and  strove  to  ascertain  it  precisely,  and  fore- 
fend  it.  They  argued,  as  will  be  hereafter  seen,  that  there  was  no 
power  whatever  to  coerce  states  in  any  manner ;  that  the  states  had 
the  right  of  self-defence,  even  against  the  federal  government ;  that 
they  only  delegated  power,  or  bound  themselves  in  union,  voluntarily, 
and  could  withdraw,  or  retract  delegations  at  will ;  and,  in  short, 
that  state  integrity  and  sovereignty  were  secure. 

Carefully  Guarding  against  Consolidation.  —  ^ay,  more,  out  of 
abundance  of  caution,  the  advocates,  to  prevent  possible  dangers,  or, 
at  all  events,  to  remove  doubts,  proposed  amendments.  This  over- 
caution  was  started  in  the  Massachusetts  convention,  where,  after 
long  and  animated  debate,  it  was  found  that  the  opposition  was  likely 
to  prevail.  Thereupon  a  " conciliatory  proposition"  was  made  by  the 
federalizers,  through  John  Hancock,  the  president,  to  the  effect  that 
the  convention  should  ratify,  with  the  understanding  that  the  states 
should  speedily  make  amendments.  Chief  among  those  proposed  was 
the  following :  That  "all  powers  not  expressly  delegated,  are  reserved 
to  the  several  states,  to  be  by  them  exercised."  But  even  then, 
though  Samuel  Adams,  the  great  leader  of  the  opposition,  joined 
Hancock,  and  both  expressed  "  full  confidence "  in  the  amendments 
being  adopted,  such  were  the  fear  and  prejudice,  that  ratification  was 
only  carried  by  a  majority  of  19  in  355  votes.  [II.  Ell.  Deb.  181.] 
And,  indeed,  so  deep  and  widespread  were  the  apprehension  and  doubt 
on  this  subject,  that  in  several  of  the  states  the  constitution  was 
barely  carried.  And  Hildreth,  the  Massachusetts  historian,  thinks, 
on  a  retrospect,  that  if  a  vote  of  the  general  people  had  been  taken, 
the  decision  would  have  been  adverse. 

This  amendment  was  a  mere  truism,  and  was  to  give  emphasis  to 
what  already  existed  in  the  nature  of  things ;  for  actual  delegations 
only  were  put  in  the  plan ;  and  the  powers  not  put  in  were  kept  out, 
and,  of  course,  retained  by  the  commonwealths  of  people.  Hence  the 
amendment  was  needed  only  to  enable  the  said  people  "clearly  to  see 
the  distinction,"  remove  their  fears,  and  give  confidence  and  hope. 


378  CITIZENSHIP,  ALLEGIANCE,  AND  TREASON. 

This  is  evident  from  the  debate  and  the  ordinance  of  ratification  [see 
II.  Ell.  Deb.  122-177,  et  seq.] ;  and  Samuel  Adams  wrote  Elbridge 
Gerry  and  R.  H.  Lee,  in  congress,  in  1789,  pressing  on  the  latter, 
"  the  importance  of  the  amendments,  that  the  good  people  may  clearly 
see  the  distinction  between  the  federal  powers  vested  in  congress,  and 
the  sovereign  authority  belonging  to  the  several  states,  which  is  the 
palladium  of  the  private  and  personal  rights  of  the  citizens;"  and 
urging  to  the  former,  that  "without  such  distinction,  there  will  be 
danger  of  the  constitution  issuing  imperceptibly  and  gradually  into  a 
consolidated  government,  over  all  the  states,  which,  though  it  may  be 
wished  for  by  some,  was  reprobated  in  the  idea  by  the  highest  advo- 
cates of  the  constitution  as  it  stood  without  amendment."  [See  III. 
Life  of  Samuel  Adams.]  Numerous  evidences  of  this  view  could  be 
given.  One  will  suffice.  Said  General  C.  C.  Pinckney,  in  the  debate 
on  ratification  in  South  Carolina :  No  powers  can  be  "in  the  general 
government  but  what  are  expressly  granted  to  it.  By  delegating 
express  powers,  we  certainly  reserve  to  ourselves  every  power  and 
right  not  mentioned  in  the  constitution." 

Successively,  South  Carolina,  New  Hampshire,  Virginia,  and  New 
York  joined  Massachusetts  in  her  demand  for  this  great  amendment. 
And  it  is  more  than  probable  that  the  general  approval  of  it,  and  the 
"full  confidence"  in  its  being  adopted,  caused  the  acquiescence  in, 
and  the  adoption  of,  the  new  system. 

In  the  congress  of  1789,  resolutions  proposing  the  amendments  for 
the  action  of  the  states  were  passed,  —  the  preamble  setting  forth 
that  some  of  the  states  expressed,  when  they  adopted  the  constitu- 
tion, "a  desire,  in  order  to  prevent  misconstruction,  or  abuse  of  its 
powers,  that  further  declaratory  and  restrictive  clauses  should  be 
added ; "  and  that  "  such  clauses  would  tend  to  increase  public  confi- 
dence, and  thereby  help  to  the  beneficent  ends  in  view." 

The  Grand  Result  of  the  Movement  may  be  stated  thus :  The 
charge  that  consolidation,  or  subordinating  the  states,  was  in  the 
original  instrument,  was  disproved.  To  make  assurance  doubly  sure, 
that  the  government  was  to  be  always  an  agency  of,  and  subordinate 
to,  the  states ;  to  complete  the  harnessing  and  utilizing  of  the  indi- 
vidual and  collective  personnel  of  the  government ;  to  emphasize  their 
subjection  to  the  law,  and  their  inability  to  act  without  express  and 
written  warrant ;  and  finally,  to  make  coercion  of  the  states,  by  their 
own  subjects  and  agency,  forever  impossible,  they  —  the  said  states  — 
amended  the  constitution  within  the  first  few  years  of  its  history,  as 
follows  —  thus  putting  the  people's  seal  of  reprobation  on,  and  forever 
preventing,  all  legislative,  military,  and  judicial  forms  of  coercion  of 
commonwealths  :  —  Amendment  IX.  provides,  that  the  enumeration  in 


FEDERAL  USURPATION  TO  BE  FEARED  AND  OPPOSED.  379 

the  constitution  of  certain  rights,  shall  not  be  construed  to  deny  or 
disparage  others  retained  by  the  people ;  Amendment  X.,  that  the 
powers  not  delegated  to  the  united  states,  or  prohibited  therein  to  the 
states,  are  reserved  to  the  states  or  people ; l  and  Amendment  XL, 
that  there  shall  be  no  federal  judicial  coercion  of  a  state  at  the  suit  of 
a  citizen  of  any  other  state.  [Please  refer  to  Amendments  IX.,  X., 
and  XL] 

It  is  obvious  that  Amendment  X.  alone,  in  declaring  that  "  all  pow- 
ers not  delegated  to  the  united  states,  are  reserved,"  etc.,  shows  that 
the  several  states  that  delegated  must  be  now  absolutely  sovereign ; 
that  they  collectively  are  the  sole  recipients  and  trustees  of  the 
powers  delegated  by  the  individual  states ;  and  finally,  that  the  whole 
grand  federal  polity  rests  solely  on  sacred  international  faith  —  the 
highest  political  sanction  that  is  earthly  and  human ;  as  well  as  the 
most  likely  to  endure  —  if  men  have  the  right  and  capacity  for  self- 
organization  and  self-government. 

In  closing  this  point,  then,  I  beg  leave  to  repeat,  that  the  fathers 
contemplated,  and  tried  to  forefend,  the  danger  of  the  federal  del- 
egative  authority  increasing,  to  the  control  and  final  destruction 
of  the  states.  Q.  E.  D. 

1  An  important  part  of  the  perverting  interpretation  I  am  exposing,  is  that  which 
takes  hold  of  the  constitution  with  its  profane  hands,  right  at  this  point,  and  says  that 
the  powers  not  delegated  are  reserved  to  the  nation  —  as  if  the  thirteen  organizations  of 
people  could  severally  ratify  and  delegate  (as  all  the  sacred  records  unequivocally  say 
they  did)  and  then  and  there,  a  nation  of  people,  comprising  the  said  "thirteen,"  could 
"retain"  and  "reserve"  those  powers  of  the  said  states  which  they,  the  said  states, 
did  not  delegate.  Of  course  this  is  intended  as  a  deception,  or  it  is  a  gross  mistake. 
Referring  to  Appendix  E  for  the  original  forms  of  the  10th  Amendment,  to  show 
what  the  meaning  and  intent  of  the  people  was ;  what  they  supposed  they  were  declar- 
ing; and  what  common  sense  teaches  they  did  declare;  I  will  state,  as  the  result  of  my 
investigation  and  thought,  that  the  conclusion  of  the  said  amendment,  means  as  if  it 
read —  reserved  to  the  state  governments  respectively,  or  to  the  people  of  the  states,  who 
delegate  the  powers  which  are  not  reserved.  See  the  proposition  of  Massachusetts,  on 
which  all  the  subsequently  ratifying  states  acted,  a  few  paragraphs  above. 


CHAPTEE  III. 
USURPATIONS  TO  BE  TREATED  AS  NULLITIES. 

T30INT  III.  — Federal  acts,  outside  of  delegated  powers,  were 
-L  to  be  treated  as  nullities,  and  —  if  attempted  to  be  enforced 
—  resisted  as  usurpations. 

Said  HAMILTON  :  "  The  laws  of  congress  are  restricted  to  a  certain 
sphere,  and  when  they  depart  from  this  sphere,  they  are  no  longer 
supreme  or  binding."  [II.  Ell.  Deb.  362.] 

Said  JUDGE  PARSONS,  "the  celebrated  chief  justice,"  as  Judge  Story 
calls  him  :  "  An  increase  of  power  by  usurpation  is  clearly  a  violation 
of  the  federal  constitution."  Again  ho  said:  "An  act  of  usurpation 
is  not  obligatory ;  it  is  not  law."  And  furthermore  he  said  :  the  oath 
to  support  the  constitution  "  obliges  the  officers  of  the  several  states  " 
to  oppose  all  such  acts.  And  this  great  jurist  and  statesman  contem- 
plated opposition  by  arms,  if  necessary.  [Ibid.  94.] 

Said  JUDGE  IREDELL,  afterwards  supreme  judge  of  the  united 
states  :  "  If  congress,  under  pretence  of  executing  one  power,  usurp 
another,  they  will  violate  the  constitution  ;  "  and  he  further  asserted 
that  "  a  law  of  congress,  not  consistent  with  the  constitution,"  would 
"not  be  binding  on  the  people."  [IV.  Ibid.  179.] 

MASSACHUSETTS,  as  usual,  caps  the  climax  —  she  and  CONNECTICUT 
and  RHODE  ISLAND  having,  in  1814  —  as  sovereigns  —  declared  that 
"  acts  of  congress,  in  violation  of  the  constitution,  are  absolutely  void  !  " 

From  this  doctrine  there  was  no  dissent  among  the  fathers  and  the 
states,  so  that  further  quotations  are  not  needed,  though  many  pages 
might  be  given.  Like  any  other  agent,  the  moment  it  gets  outside 
of  its  procuration  on  reserved  ground,  the  federal  government  becomes 
a  wrong-doer  and  trespasser.  And,  furthermore,  it  —  being  under 
oath — becomes  perjured  and  deeply  criminal.  Hence,  if  there  be  no 
law  for  its  restraint,  it  must  be  repelled  vi  et  armis.  And,  indeed, 
Judge  Parsons  spoke  of  the  resistance  to  be  offered  by  the  states  as 
war!  [II.  Ell.  Deb.  94.] 

It  is  well  to  observe  that  in  self-government,  every  citizen,  official 
or  private,  has  legal  and  political,  as  well  as  moral,  duties,  which  he 


USURPATIONS  TO  BE  TREATED  AS  NULLITIES.         381 

must  personally  perform.  His  judgment  and  his  conscience  must 
decide  each  and  every  case  presented  for  his  action.  His  responsi- 
bility is  individual  here,  just  as  much  as  it  is  in  the  hereafter.  PRES- 
IDENT JEFFERSON  was  right  in  his  letter  to  the  district  attorney  of 
New  York,  dated  November  1,  1801,  where  he  said:  "I  shall  treat 
the  sedition  law  as  a  nullity,  wherever  it  comes  in  the  way  of  my 
functions;"  and  PRESIDENT  JACKSON  was  right  in  saying,  he  had 
sworn  to  obey  the  constitution  as  he  understood  it,  and  that  where  a 
sworn  or  other  duty  was  to  be  done,  his  judgment  and  conscience 
were  to  be  his  guide  —  precedents  only  influencing  his  mind  according 
to  their  character,  weight,  and  applicability. 

And  this  was  PRESIDENT  JOHNSON'S  position,  as  discussed  in  his 
impeachment,  that  every  official,  and  every  citizen,  has  the  right  to 
refuse  to  obey  any  and  every  law,  subject  only  to  the  danger  of  judg- 
ment and  costs  being  given  against  him.  And  when  a  constitutional 
question  is  involved,  it  sometimes  becomes  a  sacred  duty  to  resist 
with  lawful  means,  and  —  in  extreme  cases  —  by  violence,  especially 
in  these  times,  when  fraud  and  force  are  vitally  attacking  our  most 
cherished  institutions. 

With  peculiar  cogency,  Webster's  words  close  the  argument :  "  the 
constitution,  to  preserve  itself,"  "  lays  its  hand  on  individual  con- 
science and  individual  duty."  And  the  lofty  phrase  of  the  hero  Jack- 
son sounds  in  unison  :  "  I  swore  to  obey  and  protect  the  constitution 
as  /  [and  not  as  others]  understand  it !  " 

The  responsibility  for  the  God-given  right  of  self-government  being 
used  correctly,  is  in  individuals,  and  they  must  resist,  either  person- 
ally or  collectively,  as  need  may  be.  In  government,  they  only  act 
in  the  latter  capacity ;  but  they  have  all  power,  and  theirs  is  the 
ultima  ratio.  This  same  conscience,  and  the  same  instinct  of  self- 
preservation,  must  be  the  prompters  and  guides,  in  either  personal  or 
social  action. 

I  conclude,  then,  that  federal  acts  outside  of  delegated  powers 
were  to  be  treated  as  nullities,  and  —  if  attempted  to  be  enforced 
—  resisted  as  usurpations.  Q.  E.  D. 


CHAPTEK  IV. 

NO  FEDERAL  COERCION  OF  STATES. 

1~")OINT  IV. — The  federal  government  is  not  only  without  au- 
-L  thority,  but  is  actually  prohibited,  to  coerce  the  state  with 
arms,  by  legislation,  or  even  judicially. 

The  states  possess  sovereignty,  that  is,  untrammelled  will  over 
'their  interest  and  destiny;  and  the  union  is  not  a  hundred-armed 
Briareus,  irresistibly  grasping  and  holding  the  states  together ;  for  if' 
it  were,  the  states  would  not  be  free.  Where  the  hand  of  power  con- 
strains a  man  or  state  to  do  or  not  to  do,  to  stay  or  not  to  stay,  free- 
dom pro  tanto  is  gone,  and  all  of  liberty  will  most  certainly  follow. 

When  the  federal  convention,  desiring  to  make  a  sufficiently  strong, 
and  a  self-sustaining  government,  was  considering  the  kind  of  coercion 
necessary  to  enforce  its  powers,  some  of  the  members  thoughtlessly 
suggested  the  idea  of  coercion  against  states.  This  was  before  the 
plan  was  adopted,  of  giving  the  federal  government  precisely  the 
mode  and  means  of  exercising  and  enforcing  jurisdiction  on  the  indi- 
vidual citizens  of  states,  that  was  already,  and  was  to  be,  exercised  by 
the  state  governments  —  that  is,  courts,  sheriffs,  and,  if  necessary, 
the  posse  comitatus,  etc.,  it  being  considered  by  all,  that  the  federal, 
like  the  state  government,  was  a  part  of  the  people's  agency  of  self- 
government. 

When  the  original  constitution,  as  completed  by  the  convention  of 
1787,  was  ordained  and  established  "between  the  states  so  [i.e.  by 
conventions]  ratifying  the  same,"  it  was  the  universal  understanding 
of  the  fathers,  that  the  states  were  in  no  wise  subject  to  it.  "  This 
constitution  does  not  coerce  sovereign  bodies  —  states,"  said  Ells- 
worth, and  all  agreed  with  him.  They  knew  the  said  states  ''dele- 
gated" the  only  powers  put  in  the  instrument,  and  "reserved"  and 
"retained"  all  others  out  of  it;  and  it  could  not  be  supposed  that 
their  own  powers,  their  own  members  and  subjects,  and  their  own 
means,  could  be  used  to  constrain  and  subjugate  their  own  wills  — 
the  sovereign  wills  that  delegated  the  powers. 


NO  FEDERAL  COERCION  OF  STATES.        383 

What  say  the  Fathers  on  Federal  Coercion  ?  —  Now  let  us  see 
what  the  leading  fathers  said  on  the  subject,  to  induce  the  people  to 
ratify  the  compact. 

The  idea  of  Noah  Webster  and  others,  of  the  states  giving  a  federal 
coercion  over  their  citizens,  like  that  which  their  respective  home 
governments  exercised,  had  been  adopted  in  the  convention  —  the 
alternative  being  coercion  of  states  as  bodies.  Hence  the  following 
expressions  of  the  fathers  :  — 

MR.  MADISON  (whom  I  have  quoted  supra,  as  saying,  with  the  con- 
currence of  everybody  of  note,  that  the  constitution  was  made  by 
"the  people  as  composing  thirteen  sovereignties,"  and  that  "the 
states  are  regarded  as  distinct  and  independent  sovereigns  ...  by 
the  constitution  proposed " ),  declared,  in  reference  to  the  proposed 
coercion  :  "  An  attempt  to  coerce  states  would  be  a  dissolution  of  all 
previous  compacts.  A  union  of  states,  containing  such  an  ingredient, 
seems  to  provide  for  its  own  destruction."  Again  :  "  Any  government 
formed  on  the  supposed  practicability  of  using  force  against  the  un- 
constitutional proceedings  of  states,  would  prove  visionary  and  falla- 
cious." [Fed.  15,  16,  20;  V.  Ell.  Deb.  171;  III.  Ibid,  passim.'] 

HAMILTON,  the  advocate  par  excellence  of  a  strong  government,  re- 
peatedly expressed  himself  against  such  an  idea.  Said  he  :  "  To 
coerce  states  is  one  of  the  maddest  projects  ever  devised.  .  .  .  Here 
is  a  nation  at  war  against  itself.  Can  any  reasonable  man  be  well 
disposed  towards  a  government  which  makes  war  and  carnage  the 
only  means  of  supporting  itself — a  government  that  can  exist  only 
by  the  sword  1  This  single  consideration  should  be  sufficient  to  dis- 
pose every  peaceable  citizen  against  such  a  government.  .  .  .  What, 
sir,  is  the  cure  for  this  great  evil  1  Nothing,  but  to  enable  the  national 
laws  to  operate  on  individuals  in  the  same  manner  as  those  of  states  do." 
[II.  Ibid.  233.] 

EDMUND  RANDOLPH,  governor  of  Virginia,  and  attorney-general  of 
the  administration  of  Washington,  uttered  the  following  in  the  Vir- 
ginia convention  :  "  But  although  coercion  is  an  indispensable  ingre- 
dient, it  ought  not  to  be  directed  against  a  state  as  a  state,  it  being 
impossible  to  attempt  it,  except  by  blockading  the  trade  of  the  delin- 
quent, or  carrying  war  into  its  bowels  .  .  .  and  [this]  might  drive 
the  proscribed  state  into  the  desperate  resolve  of  inviting  foreign 
alliances.  .  .  .  But  how  shall  we  speak  of  the  intrusion  of  troops'? 
Shall  we  arm  citizens  against  citizens,  and  habituate  them  to  shed 
kindred  blood  ?'  Shall  we  risk  the  inflicting  of  wounds  which  will 
generate  a  rancor  never  to  be  subdued  1  Would  there  be  no  room  to 
fear  that  an  army  accustomed  to  fight  for  the  establishment  of  author- 
ity, would  salute  an  emperor  of  their  own  1  Let  us  not  bring  these 


384  CITIZENSHIP,  ALLEGIANCE,  AND  TREASON. 

things  into  jeopardy.  Let  us  rather  substitute  the  same  process  by 
which  individuals  are  compelled  to  contribute  to  the  government  of  their 
own  states."  [I.  Ibid.  385;  III.  117.] 

Said  OLIVER  ELLSWORTH,  afterwards  chief  justice,  appointed  by 
Washington  :  "  Small  states  must  possess  the  power  of  self-defence,  or 
be  ruined."  Speaking  further  of  possible  antagonisms  between  the 
states  and  the  federal  government,  and  the  power  vested  in  the  latter 
to  enforce  its  laws,  he  said  :  "  This  constitution  does  not  attempt  to 
coerce  sovereign  bodies,  states  in  their  political  capacities.  No  coer- 
cion is  applicable  to  such  bodies  but  that  of  an  armed  force.  .  .  .  But 
legal  coercion  singles  out  the  guilty  individual,  and  punishes  him  for 
breaking  the  laws  of  the  union."  [II.  Ibid.  197.] 

WILLIAM  R.  DAVIE,  one  of  the  leading  statesmen  of  North  Carolina, 
and  a  member  of  both  federal  and  state  conventions,  said,  in  the  lat- 
ter :  "  I  know  of  but  two  ways  in  which  the  laws  can  be  executed  by 
any  government.  The  first  mode  is  coercion  by  military  force,  and 
the  second  is  coercion  through  the  judiciary."  He  concludes  :  "I  sup- 
pose no  man  will  support  the  former,  and  the  power  of  the  latter  is 
co-extensive  with  the  legislative."  [IV.  Ibid.  155;  also  21.] 

Said  JUDGE  SPENCER,  in  the  same  convention :  "  The  laws  of  tJie  gen- 
eral government  must  operate  on  individuals  .  .  .  as  laws  could  not  be 
put  in  execution  against  states  without  the  agency  of  the  sword,  which 
instead  of  answering  the  ends  of  government,  would  destroy  it."  [IV. 
Ibid.  163.] 

Said  RUFUS  KING,  in  the  convention  of  Massachusetts  :  "  Laws  to  be 
effective,  must  not  be  laid  on  states,  but  on  individuals."  He  .further 
said  he  knew  of  "  no  method  to  compel  delinquent  states."  [II.  Ibid. 
55-6.] 

Other  authorities  might  be  quoted,  but  there  was  no  word  of  dis- 
sent anywhere,  and  these  extracts  show  the  views  of  all.  There  was 
to  be  no  coercion  of  the  political  will  of  states  —  no  matter  what  that 
will  might  decide  —  such  coercion  being  inconsistent  with  the  agreed 
plan  of  a  voluntary  federation,  founded  solely  on  amity,  mutual  inter- 
est, and  the  hope  of  effecting  safety  by  union.  Not  only  was  no 
power  of  constraint  or  restraint  given,  but  all  the  powers  are  delegated 
professedly  to  "provide  for"  "defence,"  and  not  for  attack,  of  "the 
[communities  of]  people." 

It  is  as  true  now,  as  it  was  when  Madison,  Hamilton,  Ellsworth, 
Randolph,  King,  and  others,  asserted  it  as  above,  that  any  attempt 
to  coerce  a  state  is  war.  Nay,  more,  as  it  involves  the  use  of  force 
by  the  creature  against  the  creator ;  by  the  citizen  against  the  state  of 
which  he  is  a  member;  and  by  the  subject  against  the  sovereign,  coercion 
of  the  state,  by  the  government,  must  be  treasonable  in  its  nature. 


NO  FEDERAL  COERCION  OF  STATES.         385 

The  great  Aim  of  the  Fathers  -was  to  avoid  Coercing  the 
States.  —  It  is  evident  then,  that  the  commonwealths,  while  deter- 
mined to  continue  their  federalized  condition,  aimed  to  change  their 
federal  agency  to  one  empowered  by  them  to  operate  on,  and  coerce 
their  individual  citizens,  just  as  their  respective  domestic  govern- 
ments did.  This  is  the  very  point  of  all  the  above  expressions;  and 
number  20  of  the  Federalist  —  the  joint  production  of  Hamilton  and 
Madison  —  should  be  added  to  them,  as  remarkable  and  crowning 
proof:  "  A  •  sovereignty  over  sovereigns,  a  government  over  govern- 
ments, a  legislation  for  communities  as  contradistinguished  from  indi- 
viduals, as  it  is  a  solecism  in  theory,  so  in  practice  it  is  subversive  of 
the  order  and  ends  of  civil  polity,  by  substituting  violence  in  place  of 
law,  or  the  destructive  coercion  of  the  sword,  in  the  place  of  the  mild 
and  salutary  coercion  of  the  magistracy."  This,  with  the  following 
from  number  15  [Ibid.],  written  by  Hamilton,  should  end  controversy  : 
"  The  great  and  radical  vice  in  the  construction  of  the  existing  confed- 
eration, is  in  the  principle  of  legislation  for  states  or  governments,  in 
their  corporative  or  collective  capacities,  and  as  contradistinguished 
from  the  individuals  of  whom  they  consist."  By  reading  this  and  the 
16th  number  of  the  Federalist,  it  will  be  seen  that  the  great  aim  was 
to  do  away  with  the  great  "  vice." 

Concisely,  this  was  the  fathers'  view :  the  federal  institution  now  pro- 
posed does  not  coerce  the  states,  for  they  are  sovereign  ;  and  the  said 
agency,  with  their  authority,  coerces  their  subjects.  The  great  fear, 
at  that  time,  was,  that  if  this  change  was  not  made,  so  that  the  fed- 
eral government  would  be  able  to  execute  its  powers,  the  federation 
might  be  tempted  or  provoked,  some  time,  to  coerce  a  delinquent 
state.  Even  Mr.  Jefferson  had,  before  1787,  said,  in  substance,  We 
will  not  get  all  the  states  promptly  to  comply  with  federal  requisi- 
tions, till  the  confederacy  shows  her  teeth,  and  sends  frigates  to  their 
ports  with  shotted  guns. 

Hence  we  see  that  the  great  change  aimed  at,  was  not  "  a  change 
from  a  federation  to  another  system,"  as  Mr.  Webster  and  the  federal 
supreme  court  assert ;  but  the  federation  and  the  federal  agency  were 
continued,  and  the  change  consisted  in  making  the  latter  much  more 
efficient,  by  adding  executive  and  judicial,  to  legislative  powers,  and 
enabling  it  to  operate  directly  and  coercively  on  the  citizens  of  all  the 
states.  And  hence  we  also  see  how  fallacious  another  of  Mr.  Web- 
ster's assertions  is,  to  wit,  that  "  so  far  as  the  constitution  goes,  so 
far  state  sovereignty  is  effectually  [i.  e.  with  right  of  coercion]  con- 
trolled." 

Even  Judicial  Coercion  of  States  not  intended.  - —  Not  only  was 
legislative  coercion,  and  that  vi  et  armis,  prohibited  and  guarded 

25 


386  CITIZENSHIP,  ALLEGIANCE,  AND  TREASON. 

against,  but  even  judicial  coercion  was  intended  to  be  excluded  from 
the  constitution ;  and  as  to  the  latter,  the  compact  was  amended,  as 
we  have  seen,  to  make  assurance  doubly  sure. 

JUDGE  MARSHALL,  speaking  on  the  subject,"  in  the  Virginia  ratify- 
ing convention,  thought  that  even  under  the  original  provision,  "a 
state  would  not  be  called  at  the  bar  of  the  federal  court ; "  for,  said 
he,  "  it  is  not  rational  to  suppose  that  the  sovereign  power  should  be 
dragged  before  a  court ; "  but  he  suggested  amendment,  to  remove 
any  possible  doubt.  [III.  Ell.  Deb.  555.] 

GEORGE  MASON  said,  in  the  same  convention  :  "  Is  this  state  to  be 
brought  to  the  bar  of  justice,  like  a  delinquent  individual]  Is  the 
sovereignty  of  the  state  to  be  arraigned  like  a  culprit  or  private 
offender?  .  .  .  What  is  to  be  done  if  a  judgment  be  obtained  against 
a  state?  Will  you  issue  a  fieri  facias?  It  would  be  ludicrous  to  say 
you  could  put  the  state's  body  in  jail.  How  is  the  judgment  then  to 
be  enforced  ]  A  power  which  cannot  be  executed,  ought  not  to  be 
granted."  [Ibid.  527.] 

It  was  to  Mason  and  Henry  that  Marshall  replied  as  above.  MADI- 
SON joined  him  as  follows  :  "  It  is  not  in  the  power  of  individuals  to 
call  any  state  into  court."  He  further  said  that  if  the  clause  "  be 
found  improper,  it  will  be  amended. "  [Ibid.  533.] 

Not  only  was  no  such  power  given,  but  no  means  were  provided 
for  the  execution  of  such  power.  And,  as  George  Mason  more  than 
intimated,  a  law  without  a  sanction,  or  a  power  unaccompanied  by 
any  provision  for  its  enforcement,  is  practically  little  better  than  a 
nonentity,  and  surely  cannot  be  implied. 

It  should  be  here  explained,  that,  as  to  the  jurisdiction  of  those 
differences  between  the  states,  which  could  assume  the  form  of  suits, 
the  said  states  agreed,  in  the  constitution,  to  submit  them  to  the 
umpire  —  ?'.  e.  the  supreme  court  —  they  created  ;  and  their  good 
faith  was  pledged  to  abide  by  and  effectuate  the  judgments. 

The  federal  judiciary,  of  which  the  supreme  court  is  a  part,  is 
entirely  the  creation  of  the  states,  springing  from,  and  existing  by, 
their  will ;  and  it  is  precisely  as  if  so  many  monarchs  had  appointed 
a  commission  of  wise  subjects,  to  decide  disputes  between  them  by 
reason,  law,  and  justice. 

Massachusetts  again  in  the  Lead.  —  THE  OLD  BAY  STATE  again 
shone  resplendent  as  the  champion  of  state  sovereignty,  before  this 
matter  of  preventing  judicial  coercion  was  finally  settled.  As  suits 
were  commenced  against  states  in  the  federal  courts,  looking  to  judi- 
cial coercion,  an  agitation  was  begun  by  her,  notably  led  by  Governor 
James  Sullivan ;  and  it  spread  and  prospered,  till  the  Amendment  XI. 
was  adopted.  In  the  case  of  Chisholm  vs.  Georgia,  in  1793,  the  fed- 


NO  FEDERAL  COERCION  OF  STATES.        387 

eral  supreme  court  decided  such  suits  to  be  constitutional ;  and  Mas- 
sachusetts was  cited  to  appear  in  a  federal  court  by  William  Vassall,  a 
refugee  loyalist,  suing  for  his  confiscated  estates. 

Thereupon,  Governor  John  Hancock  convened  the  legislature,  which 
referred  to  the  above  decision,  and  —  "  Resolved,  that  a  power  claimed, 
or  which  may  be  claimed,  of  compelling  a  state  to  be  made  defendant 
in  any  court  of  the  united  states,  at  the  suit  of  an  individual  or 
individuals,  is,  in  the  opinion  of  this  legislature,  unnecessary  and 
inexpedient,  and,  in  its  exercise,  dangerous  to  the  peace,  safety,  and 
independence  of  the  several  states,  and  repugnant  to  the  first  princi- 
ples of  a  federal  government."  And  she  instructs  her  delegation  in 
congress  to  proceed  at  once  to  obtain  amendments,  to  "remove  any 
clause  or  article  of  the  said  constitution,  which  may  be  construed  to 
imply  a  decision,  that  a  state  is  compelled  to  answer,  in  any  suit,  by 
an  individual  or  individuals,  in  any  court  of  the  united  states." 

The  Grand  Result  Massachusetts  led  to.  —  The  result  of  the 
great  movement,  led  by  Massachusetts,  was  that  the  sovereigns  or- 
dained the  llth  Amendment,  providing  that  the  federal  "judicial 
power"  "shall  not  be  construed  to  extend  to  any  suit,  in  law  or 
equity,  commenced  or  prosecuted  against  one  of  the  united  states,  by 
citizens  of  another  state,  or  by  citizens  or  subjects  of  any  foreign 
state." 

GOUVERNEUR  MORRIS  afterwards  said,  that  while  the  most  of  the 
amendments  were  mere  verbiage,  "  the  one  that  a  state  should  not  be 
made  amenable  to  justice,  through  the  courts,  was,  perhaps,  proper ; " 
as  it  was  hardly  "  rational  policy,"  "  to  bring  a  state  into  a  court  of 
justice,"  "  for  it  would  not  be  easy  to  coerce  a  corporation  such  as 
New  York."  [Letter  to  R.  Walsh,  Feb.  5,  1811.] 

If  there  was  no  power  of  coercion,  there  was,  of  course,  perfect  free 
will  of  states. 

Perjured  Usurpation  and  Treason.  —  It  seems  certain,  from  the 
foregoing  authorities,  1st.  That  the  right  to  coerce  states  is  not  in, 
but  is  prohibited  by,  the  sacred  compact ;  2d.  That  the  exercise  of 
such  power  must  be  perjured  usurpation ;  3d.  That  as  far  as  the 
federal  functionaries  who  coerce,  are  members  and  subjects  of  the 
states  coerced,  they  commit  treason ;  and  those  of  the  other  states 
who  aid  them,  commit  a  federal  crime  —  so  to  speak  —  but  little  less 
atrocious. 

I  repeat,  then,  that  the  federal  government  is  not  only  without 
authority,  but  is  actually  prohibited,  to  coerce  the  state  with 
arms,  by  legislation,  or  even  judicially.  Q.  E.  D. 


CHAPTEE  V. 
SELF-DEFENCE  OF  STATES. 

POINT  V.  —  The  fathers  considered  that  the  states  in  the  union 
have   the   unlimited   right  of   self-defence,  by  withdrawing 
delegations,  and  recalling  their  citizens  from  federal  offices  ;  by 
dissociation;    and   by   fighting,   if  need  be,   the   federal  govern- 
ment. 

The  highest  and  most  conspicuous  authority  —  that  which  is  most 
conclusive  on  the  right  to  any  mode  of  defence  a  state  may  choose, 
against  the  aggressions  or  menaces  of  power,  and  against  federal  coer- 
cion —  is  the  states  themselves.  Not  only  did  they  solemnly  compact, 
and  pledge  faith  and  guaranty  with  one  another,  that  each  state  was 
"  sovereign,  free,  and  independent,"  at  the  very  moment  they,  as  thus 
characterized,  made  the  federal  constitution ;  but  they,  the  said  states, 
did  then  have  —  and  they  have  ever  since  had  —  in  their  respective 
constitutions  the  solemn  declaration  that  "  all  political  power  is  in- 
herent "  in  them.  Not  a  part,  and  not  in  any  qualified  manner,  but 
all  —  absolutely  all.  [See  the  state  constitutions  generally.] 

Surely,  surely,  if  "all  political  power"  is  inherent  in  these  com- 
munities, they  could  take  the  political  step  of  separating  or  withdraw- 
ing their  delegations  of  power  from  the  federal  government;  and 
there  could  be  no  political  authority  out  of  them,  to  coerce  them 
against  their  will,  especially  as  they  have  made  no  expression  to  that 
effect.  It  is  quite  obvious,  that  if  there  was  any  political  power  out 
of  them  that  they  could  not  recall  at  will,  they  were  neither  sove- 
reigns nor  free  states.  Passing  by  this,  let  us  see 

What  the  Fathers  say  on  Self-defence  of  States.  —  Said  DR. 
JOHNSON,  one  of  the  most  eminent  lawyers  and  statesmen  of  Con- 
necticut, in  the  federal  convention  :  "  If  states  as  such  are  to  exist, 
they  ought  to  have  the  means  of  defending  themselves."  [V.  Ell. 
Deb.  255.] 

Said  OLIVER  ELLSWORTH  —  afterwards  the  chief  justice  of  the 
united  states  —  in  the  same  convention  :  "  The  power  of  self-defence 
is  essential  to  the  small  states.  Nature  has  given  it  to  the  smallest 
insect  of  the  creation."  [Ibid.  260.] 


SELF-DEFENCE   OF  STATES.  389 

Said  JOHN  MARSHALL  —  afterwards  the  celebrated  chief  justice  of 
the  united  states  —  in  the  Virginia  convention :  "  We  [i.  e.  the  people  of 
Virginia]  are  threatened  with  the  loss  of  our  liberties  by  the  possible 
abuse  of  power,  notwithstanding  the  maxiin  that  those  who  give  may 
take  away.  It  is  the  people  that  give  power,  AND  CAN  TAKE  IT  BACK. 
What  shall  restrain  them  1  They  are  the  masters  who  gave  it,  and  of 
whom  the  servants  hold  it.  .  .  .  The  government  is  not  supported  by 
force,  but  depending  on  our  FREE-WILL.  When  experience  shall  show 
us  any  inconvenience,  we  can  then  correct  it."  [III.  Ibid.  233.] 

Said  CHANCELLOR  PENDLETON,  the  president  of  said  convention,  on 
the  same  occasion  :  "  Where  is  the  cause  of  alarm?  We,  the  people 
[of  Virginia],  possessing  all  power,  form  a  government,  which  we 
think  will  secure  happiness.  And  suppose,  in  adopting  this  plan, 
we  should  be  mistaken  in  the  end.  ...  In  the  same  plan  we  point 
out  an  easy  and  quiet  method  of  reforming  what  may  be  found  amiss. 
But,  say  gentlemen,  we  have  put  the  introduction  of  that  method  in 
the  hands  of  our  servants,  who  will  interrupt  it  from  motives  of  self- 
interest.  What  then  1  We  will  assemble  in  convention  [of  Virginia,  of 
course],  WHOLLY  RECALL  OUR  DELEGATED  POWERS,  or  reform  them,  so 
as  to  prevent  such  abuse,  and  punish  those  servants  who  have  per- 
verted powers,  designed  for  our  happiness,  to  their  own  emolument." 
[Ibid.  37.] 

MR.  MADISON  expressed  the  same  views.  So  did  George  Nicholas 
and  others.  No  one  opposed  them.  And  what  is  most  decisive  is, 
that,  through  this  convention,  the  people  of  Virginia  did,  as  a  sovereign 
commonwealth,  accompany  the  ratification  with  this  solemn  protest : 
"  that  the  powers  granted  under  the  constitution,  being  derived  from 
the  people  of  the  united  states  [will]  be  RESUMED  by  them,  whensoever 
the  same  shall  be  perverted  to  their  injury  or  oppression."  [Ibid. 
656.] 

Of  right,  she  could  only  speak  for  herself  in  this  matter,  which  she 
did,  by  uttering  a  general  principle.  As  the  delegated  power  came, 
by  the  ordinance  of  ratification,  from  each  state,  the  withdrawal  must 
be  by  each,  and  this  is  the  only  possible  meaning  of  "  resumed,"  or 
"reassumed,"  as  New  York  expressed  it;  and  it  would  be  by  virtue 
of  an  authority  superior  to  the  thing  made  —  an  authority  above 
any  constitution  or  government  —  the  jus  summa  imperil.  There  can 
be  no  "constitutional  right  to  secede."  Such  right  must  be  inherent, 
characteristic,  and  inalienable,  as  well  as  above  the  constitution.  In 
those  days  nobody  denied  the  right.  It  was  an  essential  attribute  of 
state  sovereignty,  which  was  supposed  to  be  unquestionable.  But  let 
us  pass  on. 

JAMES  IREDELL,  afterwards  of  the  supreme  court  of  the  union,  in  the 


390  CITIZENSHIP,  ALLEGIANCE,  AND  TREASON. 

convention  of  North  Carolina,  after  saying  that  the  senate  was 
required  "  to  preserve  completely  the  sovereignty  of  the  states,"  said  : 
"  Those  in  power  are  their  [the  people's]  servants  and  agents,  and  the 
people,  without  their  consent,  may  new-model  their  government,  when 
they  think  proper.  .  .  .  Let  them  [the  people]  be  watchful  over  their 
rulers.  .  .  .  Should  their  liberties  be  in  danger  .  .  .  they  have,  thank 
God,  an  ultimate  remedy.  THAT  POWER  WHICH  CREATED  THE  GOVERN- 
MENT CAN  DESTROY  IT.  ...  If  the  government  want  amendments, 
they  can  be  made  in  the  mode  prescribed  in  it."  [IV.  Ibid.  9,  130.] 

Here  is  the  right  of  secession  again  —  brought  forward  too  as  an 
argument  in  favor  of  adoption.  No  one  questioned  it ! 

ROGER  SHERMAN,  one  of  the  great  statesmen  of  Connecticut,  wrote 
to  John  Adams,  July  20,  1789,  as  follows:  "I  fully  agree  with  you, 
sir,  that  it  is  optional  with  the  people  of  a  state,  to  establish  any  form 
of  government  they  please  —  to  vest  the  powers  in  one,  a  few,  or 
many  —  and  for  a  limited  or  unlimited  time;  and  the  individuals 
of  the  state  will  be  bound  to  yield  obedience  to  such  government 
WHILE  IT  CONTINUES  ;  but  I  am  also  of  opinion  that  THEY  MAY  ALTER 
their  frame  of  government  WHEN  THEY  PLEASE,  any  former  act  of 
theirs,  however  explicit,  to  the  contrary  notwithstanding." 

JOHN  DICKINSON,  after  recognizing  the  commonwealths  of  people  as 
the  several  and  sovereign  authorities  constituting  the  new  system,  and 
intending  to  act  under  it,  puts  hypothetically  the  case  of  "bad 
administration,"  and  asks  :  "  What  is  then  to  be  done  1  The  answer," 
he  continues,  "is  instantly  found  ;  let  the  fasces  be  lowered  before  the 
supreme  sovereignty  of  the  people.  It  is  their  duty  to  watch,  and  their 
right  to  take  care,  that  the  constitution  be  preserved  :  or,  in  the 
Roman  phrase,  on  perilous  occasions,  to  provide  that  the  republic  re- 
ceives no  damage."  [See  II.  Pol.  Writings  John  Dickinson.] 

Do  the  above  authorities  favor  the  idea  that  the  commonwealth 
was,  by  its  own  compact,  tied  helplessly  under  governmental  sove- 
reignty 1 

And  even  JAMES  WILSON,  the  leading  statesman  of  Pennsylvania,  — 
afterwards  one  of  the  federal  supreme  jndges,  —  advances  the  same 
idea,  as  was  unavoidable  from  the  nature  of  things.  He  asserted  that 
the  absolute  sovereignty  never  "  goes  from  the  people,"  but  "  remains 
in  them  after  a  constitution  is  made";  that  making  constitutions 
is  "dispensing  such  portions  of  power"  as  "the  public  welfare"  re- 
quires; that  ratifying  the  federal  constitution  was  "delegating  federal 
powers";  and  that  the  general  government  is  "a  federal  body  of  our 
own  creation."  And,  said  he  :  The  constitution  "  receives  its  politi- 
cal existence  from  their  [the  people's]  authority;  they  ordain  am 
establish.  What  is  the  necessary  consequence  1  THOSE  WHO  O 


SELF-DEFENCE  OF  STATES.  391 

AND  ESTABLISH  HAVE  THE  POWER,  if  they  think  proper,  TO  REPEAL  AND 
ANNUL."     [II.  Ell.  Deb.  435.] 

This  of  itself,  taken  in  connection  with  the  fact  that  Pennsylvania 
was  then  "  sovereign  and  independent,"  and  as  such  was  then  in 
convention  determining  her  will  for  or  against  delegating  or  dispens- 
ing portions  of  her  power  to  a  federal  government,  ought  to  convince 
any  one  that  the  sovereignty  of  the  states,  and  the  necessary  right 
of  secession,  were  taken  for  granted,  and  were  intended  to  be  pre- 
served. 

Let  us  now  introduce,  as  testimony  on  this  all-important  point  of 
the  right  of  self-defence  in  states, 

The  ancient  faith  of  Massachusetts,  as  set  forth  by  her  chosen 
sons  in  her  great  ratifying  convention.  Such  views  as  the  above  met 
therein  no  dissent  whatever. 

REV.  SAMUEL  STILLMAN  said  :  "  After  all,  if  this  constitution  were 
as  perfect  as  the  sacred  volume  is,  it  would  not  secure  the  liberties  of 
the  people,  unless  they  watched  their  own  liberties.  Nothing  written 
on  paper  will  do  this.  .  .  .  Should  the  general  government  become 
so  lost  to  all  sense  of  honor,  and  the  freedom  of  the  people,  as  to 
attempt  to  enslave  them,  they,  who  are  the  descendants  of  a  race  of 
men  who  have  dethroned  kings,  would  make  an  American  congress 
tremble ;  strip  them  of  their  public  honors,  and  reduce  them  to  the 
lowest  state  of  degradation."  [II.  Ell.  Deb.  169.] 

JUDGE  PARSONS,  afterwards  "  the  celebrated  chief  justice  of  Massa- 
chusetts," took  the  same  view  in  the  convention.  Speaking  of  the 
federal  government,  he  said  :  — 

"  They  are  the  servants  of  the  people,  vested  with  delegated  pow- 
ers; ...  in  this  case  the  people  divest  themselves  of  nothing."  Again 
he  said  :  "  An  increase  of  powers  by  usurpation  is  clearly  a  violation 
of  the  federal  constitution  ; "  and  the  oath  to  support  the  instrument 
"  obliges  the  officers  of  the  several  states "  to  oppose  it.  He  also 
spoke  of  another  check,  founded  on  the  nature  of  the  union,  superior 
to  all  the  parchment  checks  that  can  be  invented.  .  .  . 

"  If  there  should  be  a  usurpation,  it  will  be  upon  thirteen  legisla- 
tures completely  organized,  possessed  of  the  confidence  of  the  people, 
and  having  the  means,  as  well  as  inclination,  successfully  to  oppose 
it.r  And  he  characterized  this  as  an  appeal  to  arms  !  [II.  Ell.  Deb. 
94.] 

Said  FISHER  AMES,  on  the  same  occasion  :  "  The  state  governments 
represent  the  wishes,  and  feelings,  and  local  interests  of  the  people. 
They  will  afford  a  shelter  against  the  abuse  of  power  ;  and  will  be  the 
natural  avengers  of  our  violated  rights."  [II.  Ell.  Deb.  46.]  What ! 
can  the  states  fight  the  federal  government,  if  it  attempt  coercion  1 


392  CITIZENSHIP,  ALLEGIANCE,  AND  TREASON. 

This  treason  comes  from  Massachusetts !  It  is  true  and  sound 
principle. 

Similar  Treason  from  Virginia.  —  Said  EDMUND  RANDOLPH,  the 
then  governor  of  Virginia,  afterwards  attorney-general,  and  secretary 
of  state  under  Washington's  administration,  in  the  Virginia  ratifying 
convention  :  Congress  cannot  "  possibly  assume  any  other  power  but 
what  is  contained  in  the  constitution,  without  absolute  usurpation. 
Another  security  is,  that  if  they  attempt  such  a  usurpation,  the  influ- 
ence of  the  state  governments  will  nip  it  in  the  bud  of  hope.  The  gov- 
ernment will  be  cautiously  watched,  and  the  smallest  assumption  of 
power  will  be  sounded  in  alarm  to  the  people,  and  followed  by  bold  and 
active  opposition:'  [III.  Ell.  Deb.  206-7.] 

MADISON  not  only  often  spoke  of  the  states  as  sovereigns,  and  supe- 
rior to  the  government  they  formed,  but  as  possessing  the  absolute 
right  of  self-defence.  For  instance,  he  said  Virginia  acceded  to  the 
compact  as  a  "  sovereign  state,"  and  that  the  said  compact  "  was  to 
be  binding  on  the  people  of  the  state  only  by  their  own  separate  as- 
sent." And  in  speaking,  in  the  Virginia  convention,  upon  the  federal 
provision  for  organizing,  arming,  and  disciplining  the  militia,  he  said  : 
"If  we  [the  people  of  Virginia]  be  dissatisfied  with  the  national  gov- 
ernment, if  we  should  choose  to  renounce  it,  this  [the  trained  militia]  is 
an  additional  safeguard  to  our  defence."  [Ibid.  414.]  This  means 
nothing,  if  it  does  not  mean  that  we  can  renounce  the  national  gov- 
ernment if  we  choose,  and  that  the  militia  is  ours  \i.  e.  the  people  of 
Virginia's]  for  defence  against  all  comers.  Indeed,  both  Madison  and 
Marshall  stated  in  substance  that  the  militia,  of  original  and  para- 
mount right,  belonged  to,  and  could  be  controlled  by,  the  states. 

Hamilton's  Testimony.  —  When  Hamilton  and  Madison  concur,  it 
matters  little  what  others  say ;  but  none  of  the  fathers  dissented. 

Said  HAMILTON,  in  No.  28  of  the  Federalist :  "  It  may  safely  be  re- 
ceived as  an  axiom  in  our  political  system,  that  the  state  governments  will, 
in  all  possible  contingencies,  afford  complete  security  against  invasions  of 
the  public  liberty  by  national  authority.  In  a  confederacy,  the  people, 
without  exaggeration,  may  be  said  to  be  entirely  masters  of  their  own 
fate"  "  The  constitution,"  said  he,  in  the  New  York  convention, 
"  ought  not  to  be  so  formed  as  to  prevent  the  states  from  providing  for 
their  own  existence,  and  I  maintain  that  it  is  not  so  formed."  And 
in  No.  26  of  the  Federalist  he  said:  "The  state  legislatures"  are 
to  be  the  "  guardians  of  the  rights  of  the  citizens  against  encroach- 
ments of  the  general  government,  .  .  .  to  sound  the  alarm  to  the 
people,  and  not  only  to  be  the  voice  but,  if  necessary,  the  arm  of  their 
discontent"  And  he  had  previously  said  in  the  New  York  assembly 
(February  19,  1787):  "Each  state  possesses  in  itself  full  powers  of 


SELF-DEFENCE  OF  STATES. 


393 


government,  and  can  at  once,  in  a  regular  and  constitutional  way, 
take  measures  for  the  preservation  of  its  rights." 

Mr.  Rives,  in  his  Life  of  Madison  (Vol.  II.  p.  501),  after  quoting 
Hamilton's  "  axiom  in  our  political  system,"  that  "  the  state  govern- 
ments, in  all  possible  contingencies,  afford  complete  security  against 
invasions  of  the  public  liberty  by  national  authority,"  proceeds  to  say, 
what  every  investigator  knows  to  be  true,  that  "  this  was  among  the 
considerations  most  dwelt  on  by  writers  of  the  Federalist,  to  recom- 
mend the  constitution  to  the  favor  and  confidence  of  the  people." 

The  last  Reasoning  of  the  States  on  the  Subject.  —  We  see, 
then,  that  the  states,  as  individuals,  not  less  distinct  than  so  many 
men,  associated  themselves  in  their  second,  and,  as  they  expressed  it, 
"  more  perfect  union."  They,  ipso  facto,  established  their  general 
agency  for  self-ruling  and  self-defence.  The  instinct  and  right  of 
self-preservation  exists  in  each,  as  an  inherent  and  inseparable  part  of 
its  nature.  Now,  had  these  actors  respectively  any  less  desire,  aim,  and 
duty  of  self-preservation,  after  associating  1  No  !  all  the  fathers  recog- 
nized, not  only  the  right,  but  the  duty  of  the  state,  when  it  deems  its 
existence,  its  sovereignty,  or  the  essential  rights  of  itself  or  its  people, 
endangered  by  the  acts  or  menaces  of  the  federal  government,  to 
oppose  them  ;  and,  if  the  said  government  persist,  to  do  it  with  arms  ! 
Why?  Because  the  state  is  the  people,  and  the  only  people  in  the  land 
organized  into  a  political  commonwealth  or  corporation,  and  it  has 
all  original  jurisdiction  over  every  possible  matter  of  life,  liberty,  and 
property  —  a  jurisdiction  coupled  with  the  responsibility  of  protection 
and  defence ;  and  if  the  federal  "  substitutes  and  agents,"  by  virtue 
of  the  small  modicum  of  derivative  authority  delegated  to  them,  for- 
get their  derivative  and  "  act  as  from  original  power  "  —  transcending 
their  bounds,  and  menacing  the  liberties  of  the  people,  the  state  must 
interpose  its  segis  and  say  :  "  You  were  sent  forth  as  subjects,  dele- 
gates, agents,  and  servants ;  if  you  come  back  dominating  as  a  sove- 
reign, a  principal,  or  a  master,  and  using  coercion  to  effect  your  will 
and  defeat  mine,  I  must  meet  you  with  arms  ! " 

Beyond  question,  then,  not  only  has  the  federal  agency  no  right  to 
coerce  its  makers,  as  I  have  heretofore  shown,  but  these  makers 
have,  as  against  it,  unlimited  right  of  self-defence,  by  withdraw- 
ing delegations,  and  recalling  their  citizens  from  federal  offices ; 
by  dissociation  ;  and  by  fighting,  if  need  be,  the  federal  govern- 
ment. Q.  E.  D. 


CHAPTER  VI. 

TRUE  LOYALTY  IS  FIDELITY  TO  THE   STATE. 

TT)OINT  VI.  —To  defend  the  state  with  arms,  in  obedience  to  her 
JL  will,  is  the  duty  of  the  member  or  citizen,  and  is  not  treason 
in  any  sense ;  but  is  true  loyalty. 

Several  corollaries  of  vital  importance  flow  from  this  point,  which 
it  is  well  here  to  state  :  — 

1.  That  the  primary  devotion  of  the  citizen  is,  and  ought  to  be,  to 
his  state,  so  that  in  a  conflict,  he  would  cleave  to  her  against  the 
federal  government. 

2.  That  the  citizens  are  the  states,  and  the  only  citizenship  is  of 
the  states.     Necessarily  the  only  allegiance  is  to  states.     Both  fed- 
eral and  state  constitutions  prove  these  facts. 

3.  That  the  state,  being  the  citizens  thereof,  and  the  arms-bearing 
citizens  being  the  military  force,  the  state  has  the  original  and  supreme 
right  — Coupled  with  the  duty  —  to  control  and  use  the  said  force  for 
her  defence. 

4.  That  citizens,  by  defending  the  state,  are  defending  themselves 
—  both  individually  and  collectively  —  as  required  by  Nature's  first, 
greatest,  and  best  law  —  the  law  of  self-preservation. 

5.  That  the  citizens,  as  organized,  being,  in  reality,  the  governing 
authority,  a  citizen  cannot  commit  treason,  if  he  obey  the  common- 
wealth, this  being  the  very  obligation  of  the  social  compact. 

6.  And,  finally,  that  the  federal  constitution  proves  the  state  to  be 
the  sole  object  of  treason. 

A  few  Explanatory  Remarks.  —  We  must  keep  it  in  mind  that, 
"the  state"  and  the  "citizens  thereof,"  are  convertible  phrases,  the 
citizens  being  the  state.  They  are  the  republic,  i.  e.  an  organized, 
self-governing  commonwealth.  The  federal  agency's  only  right  to 
the  obedience  of  the  citizen  is  delegated  to  it  by  the  states.  Obeying 
the  federal  government,  therefore,  is  obeying  its  creators  and  sove- 
reigns, the  states ;  each  citizen  obeying  because  the  sovereign,  whose 
subject  he  is,  commands  it.  In  a  word,  the  citizens,  as  individuals, 
obey  themselves,  as  commonwealths  —  this  federal  contrivance  being 


TRUE  LOYALTY  IS  FIDELITY  TO  THE  STATE.          395 

merely  their  agency  for  self-government  in  general  matters,  just  as 
the  state  government  is  their  agency  for  self-government  in  domestic 
affairs.  This  is  republicanism. 

These  remarks  will  enable  us  the  more  readily  to  appreciate  the 
following  considerations,  which  will  be  seen  to  be  those  of  the  fathers 
themselves. 

THE  STATE   IS  THE  SOLE  OBJECT  OF  PATRIOTISM. 

1.  The  fathers  consider  that  the  primary  devotion  of  the  citizen 
•would  be,  and  ought  to  be,  to  his  state ;  so  that  in  case  of  conflict, 
he  would  cleave  to  her  against  the  federal  government. 

This  natural  devotion  of  citizens  to  their  states,  was  the  fathers' 
strongest  ground  of  argument  against  the  danger  of  federal  aggression. 
It  was  treated  of  by  them,  as  a  natural  and  controlling  sentiment  of 
the  citizen  towards  the  body  he  was  an  integral  part  of,  and  which 
the  social  compact  bound  him  to  love,  honor,  and  obey.  They  knew 
that  the  said  commonwealth  included  and  secured  all  the  citizen  held 
dear,  and  that  patriotism  and  loyalty  were  consonant,  if  not  identical, 
with  his  self-love,  his  affection  for  his  family  and  kindred,  and  his 
regard  for  his  home  treasures,  his  friends,  his  neighbors,  his  fellow- 
citizens,  and  the  palladium  that  protects  them  all  —  the  state  ! 
These  feelings  are  the  necessary  elements  of  patriotism ;  while  the 
federal  government,  being  at  best  only  a  political  arrangement,  or 
agency  of  the  states,  which  are  identical  with  the  said  citizens,  could 
only  be  an  object  of  respect  and  obedience  to  a  given  citizen,  as  long 
as  his  commonwealth  willed  him  to  obey  it. 

Let  the  Fathers  express  the  Glorious  Sentiment.  —  Said  JOHN 
DICKINSON  :  "  The  trustees  or  servants  of  the  several  states  will  not 
dare,  if  they  retain  their  senses,  to  violate  that  independent  sovereignty 
of  their  respective  states  —  that  JUSTLY  DAELING  OBJECT  OP  AMERICAN 
AFFECTIONS,  to  which  they  are  responsible."  These  sentiments  were 
expressly  approved  by  Washington.  Said  HAMILTON  :  "  There  are 
certain  social  principles  in  human  nature  from  which  we  may  draw 
the  most  solid  conclusions,  with  respect  to  the  conduct  of  individuals 
and  communities.  We  love  our  families  more  than  our  neighbors. 
We  love  our  neighbors  more  than  our  countrymen  in  general.  The 
human  affections,  like  the  solar  heat,  lose  their  intensity  as  they 
depart  from  the  centre,  and  become  languid  in  proportion  to  the 
expansion  of  the  circle  on  which  they  act.  On  these  principles, 
the  attachment  of  the  individual  will  be  first  and  forever  secured  by 
the  state  government."  And  he  believed  the  states  to  possess  unlimited 
right  of  self-defence.  Said  MARSHALL,  in  reply  to  the  argument  that 
by  giving  a  certain  power  to  the  federal  government,  the  states  might 


396  CITIZENSHIP,  ALLEGIANCE,  AND  TREASON. 

impair  their  power  of  self-defence  :  "  Does  not  every  man  feel  a  refu- 
tation of  the  argument  in  his  own  breast1?"  —  that  is  to  say  —  Is  not 
self-defence  the  first  law  of  nature  1  This  right,  as  well  as  the  right 
of  withdrawing  delegated  power  by  the  states,  he  thought  unlimited. 
Said  ELLSWORTH  :  "  I  turn  my  eyes  to  the  states  for  the  preservation 
of  my  rights.  .  .  .  The  greatest  happiness  I  expect  in  this  life,  I  can 
derive  from  these  alone.  This  happiness  depends  on  their  existence, 
as  much  as  a  new-born  infant  on  its  mother  for  nourishment."  He 
considered  the  right  of  self-defence  in  states  as  "  essential "  and  un- 
limited. 

Every  sentiment  of  the  patriotic  age  was  in  unison.  Not  a  soul  of 
the  fathers  ever  dreamed  that  any  combination  of  the  states,  or  por- 
tion of  the  people,  could  legally  use  the  federal  government,  and  its 
vested  power  and  war  means,  to  conquer  other  states,  and  to  punish 
the  citizens  of  these  for  treason.  Not  a  soul  of  them  ever  supposed 
that  defending  one's  state  was  traitorous.  State  sovereignty  —  no 
coercion  of  states  —  unlimited  state  defence,  were  the  ideas  of  all. 

Governor  EDMUND  RANDOLPH,  in  the  Virginia  ratifying  convention, 
summed  up  the  whole  glorious  theory  of  true  loyalty,  as  follows : 
After  saying  that  the  rights  of  the  states  are  "  guarded  by  the  provi- 
sions just  recited.  If  you  say,"  continued  he,  "  that,  notwithstanding 
the  most  express  restrictions,  they  [the  government]  may  sacrifice  the 
rights  of  the  states,  then  you  establish  another  doctrine  —  that  the 
creature  can  destroy  the  creator,  which  is  the  most  absurd  and  ridicu- 
lous of  all  doctrines."  [III.  Ell.  Deb.  363.] 

In  other  words,  it  is  absurd  and  ridiculous  to  say  that  the  general 
government  can  coerce  states ;  that  the  states  cannot  defend  them- 
selves; or  that  loyalty  is  due  to  the  created  agency,  instead  of 
the  sovereign  creators.  As  Marshall  says  — "  Every  man  feels  a 
refutation  of  the  argument  in  his  own  breast." 

I  conclude,  then,  that  the  loyalty  of  a  citizen  is  due,  and  that  it 
will  be  given,  to  his  state  under  all  circumstances.  Q.  E.  D. 


CHAPTEE  VII. 

AMERICAN  CITIZENSHIP  AND  ALLEGIANCE. 

2.  'THHE  citizens  are  the  state  ;  the  only  citizenship  is  of  states  ; 
JL  and  necessarily  the  only  allegiance  is  to  states.  These  are 
the  ideas  of  both  federal  and  state  constitutions,  as  well  as  of  the 
fathers. 

It  is  beyond  question  that  the  only  citizenship  originally  existent 
in  the  states  that  joined  themselves  in  union,  was  citizenship  of  a 
state ;  and  citizenship  of,  and  allegiance  to,  a  nation,  or  a  national  (or 
federal)  government,  was  never  provided  for,  if  it  was  even  thought  of. 
This  is  quite  evident  from  the  following  clauses  :  "  The  citizens  of 
each  state  shall  be  entitled  to  all  privileges  and  immunities  of  citizens 
in  the  several  states."  [Art.  IV.  §  2.]  "  The  judicial  power  of  the 
united  states  shall  extend  ...  to  controversies  between  citizens  of 
different  states;  between  citizens  of  the  same  state  claiming  lands 
under  grants  of  different  states ;  and  between  a  state,  or  the  citizens 
thereof,  and  foreign  states,  citizens,  or  subjects."  [Art.  III.  §  2. 
See  also  Amendment  XL]  If  there  were  any  citizens  of  a  nation, 
they  were  not  recognized  or  provided  for.  There  were  no  other 
citizens  than  "  the  citizens  of  each  state,"  and  their  citizenship  and 
allegiance  was  never  transferred.  The  reason  is  quite  obvious. 
States  were  the  constituents  of  the  federal  system;  and  these  very 
citizens  were  the  states  —  each  being  a  member,  an  integral  part  of 
his  state  ;  and  if  such  transfer  had  taken  place,  there  would  have  been 
no  more  "  citizens  of  each  state,"  and  it  would  thus  have  contradicted 
and  defeated  the  constitution  itself;  there  being  no  provision  for  any 
other  citizens  than  those  of  a  state,  who  must,  of  course,  remain  un- 
transferred,  in  order  to  answer  to  these  descriptions  and  provisions  as 
to  "  the  citizens  of  each  state,"  "  citizens  of  different  states,"  etc. 

We  see,  then,  that  President  Jackson's  statement  in  his  celebrated 
proclamation  of  1832  —  that  "the  allegiance  of  their  citizens  was  trans- 
ferred to  the  government  of  the  united  states  "  by  their  respective  states, 
is  absolutely  untrue,  unconstitutional,  and  absurd.  The  truth  is, 
the  proclamation  against  South  Carolina  was  for  an  exigency  of  a 


398  CITIZENSHIP,  ALLEGIANCE,  AND  TREASON. 

politician  and  his  party,  and  the  subsequent  explanation  in  the  Globe 
was  for  another.  Jackson  was  one  of  the  most  illustrious  of  great 
Americans.  Was  he  not  unwittingly  one  of  the  most  efficient  of  the 
destroyers  of  American  institutional  liberty  ] 

False  Naturalization.  —  But  there  is  a  provision,  which  some  have 
thought,  or  pretended  to  think,  referred  to,  or  provided  for,  another 
citizenship,  when  really,  taken  with  the  above  clauses,  it  is  the 
strongest  possible  evidence  to  the  contrary.  "  The  congress  shall 
have  power  [not  to  naturalize,  but]  to  establish  a  uniform  rule  of 
naturalization,  and  uniform  laws  on  the  subject  of  bankruptcies 
throughout  the  united  states."  As  to  citizenship,  the  object  of  the 
clause  was  to  produce  uniformity  and  homogeneousness  throughout  the 
states.  New  "citizens  of  each  state  "  were  to  be  made  of  immigrants, 
and  as  the  thirteen  states  were  the  necessary  actors  in  naturalizing, 
and  aimed  at  uniformity,  they  "  delegated  "  the  power  to  the  congress 
they  created,  "  to  establish  a  uniform  rule,"  by  which,  of  course,  they 
obligated  themselves  to  act.  States  were  the  only  authorities  that 
could  endow  foreigners  with  all  civil  rights,  so  as  to  make  them  equal 
to  native-born  citizens  —  which  is  the  object  of  naturalization  —  and 
at  the  same  time  protect  them  in  all  the  civil  rights  given ;  for  these 
new  citizens  were  to  become  their  members  and  subjects,  and  their 
machinery  of  government  includes  the  only  courts  that  have  plenary 
jurisdiction  over  all  the  civil  rights  of  citizens. 

But  though  this  is  the  plain  and  obvious  meaning,  congress  —  so 
prone  is  power  to  magnify  itself — early  began  the  "change,"  as 
Burke  phrases  it,  "from  an  immediate  state  of  procuration  and 
delegation,  to  a  course  of  acting  as  from  original  power  " ;  and  took 
the  exclusive  jurisdiction  of  the  whole  subject;  acted  as  the  sovereign 
naturalizing  authority,  and  secured  allegiance  of  the  new  citizens  to 
the  general  government,  thus  making  a  second  class  of  citizens,  and 
defeating  the  very  uniformity  the  two  clauses  quoted  above  were 
intended  to  produce.  One  class  was  the  whole  body  of  original 
citizens  and  their  descendants,  whose  allegiance  to  the  state  was  never 
changed ;  and  the  other  comprised  such  foreigners  as,  being  natural- 
ized by  law  of  congress,  swore  allegiance  to  a  pseudo-sovereignty,  and 
became  members  or  citizens  of  a  supposititious  nation.1 

If  any  one  doubt  this  view,  let  him  answer  when,  where,  how,  and 
to  whom  the  allegiance  was  changed  from  the  state.  Where  is  the 
record  of  such  change  1  He  will  see,  the  moment  he  attempts  an 
answer,  that  the  claim  of  allegiance  for  the  federal  agency  is  false  and 

1  A  singular  mistake  was  made  by  the  confederate  constitution-makers  —  considering 
that  they  seceded  to  save  statehood  —  in  giving  the  confederate  congress  the  power  "to 
make  [not  "a  uniform  rule,"  but]  uniform  laws  of  naturalization." 


AMERICAN  CITIZENSHIP  AND  ALLEGIANCE.  399 

preposterous.  There  could  be  no  allegiance  to  those  who  at  best  were 
"  representatives,"  "  delegates,"  "  trustees,"  "  substitutes,"  "  agents," 
"servants,"  as  all  the  fathers  invariably  called  them,  and  as  they 
have  always  been  characterized  by  the  states  and  people. 

Let  the  States  testify  on  Citizenship.  —  The  evidence  of  the  follow- 
ing states  is  conclusive,  that  they  never  thought  of  the  transfer  of  the 
very  integers  of  which  they  are  entirely  and  exclusively  composed  — 
their  citizens  —  to  their  agency  of  government.  Self-preservation  was 
their  first  law,  and  to  keep  the  allegiance  of  their  constituent  mem- 
bers was  a  sine  qua  non. 

MAINE,  in  her  constitution  of  1819,  declares  that  "  every  citizen  may 
freely  speak,  write,  and  publish  his  sentiments,"  etc.,  and  that  "every 
citizen  has  the  right  to  keep  and  bear  arms,"  etc. 

MASSACHUSETTS,  in  her  present  constitution,  says,  "  every  subject  of 
the  commonwealth"  has  a  right  to  redress  for  all  injuries  and  wrongs ; 
and  that  "  every  male  citizen "  of  the  state  (i.  e.  "  subject  of  the 
commonwealth "),  possessing  certain  qualifications,  is  entitled  to  a 
vote. 

NEW  HAMPSHIRE  —  constitution  of  1792  —  declares  that,  "every 
citizen  of  this  state  is  entitled,"  etc. 

VERMONT,  in  her  constitution,  calls  her  native  citizens  "  natural 
born  subjects  of  this  state." 

CONNECTICUT  —  constitution  of  1818  —  declares  that,  "  every  citizen 
has  a  right  to  bear  arms  in  defence  of  himself  and  the  state." 

NEW  YORK  —  constitution  of  1846  —  declares  that  "no  authority 
can,  on  any  pretence  whatever,  be  exercised  over  the  citizens  of  this 
state,  but  such  as  is,  or  shall  be,  derived  from,  and  granted  by,  the 
people  of  this  state  ; "  and  that  "  no  member  of  this  state  shall  be 
deprived  of  life,  liberty,  or  property,  without  due  process  of  law." 

PENNSYLVANIA  —  constitution  of  1790  —  declares  that  the  voting 
and  holding  of  office  shall  only  be  by  citizens  of  the  state ;  and  that 
"  the  right  of  the  citizens  to  bear  arms  in  defence  of  themselves  and 
the  state,  shall  not  be  questioned." 

MARYLAND  —  constitution  of  1801  —  declares  that  "  every  free 
white  male  citizen  of  this  state,  and  no  other,  above  twenty-one  years 
of  age  .  .  .  shall  have  a  right  of  suffrage,"  etc. 

SOUTH  CAROLINA  —  constitution  of  1803  —  provides  that  every 
voter  must  be  "  a  citizen  of  this  state." 

See  also  the  constitutions  of  GEORGIA,  1798;  KENTUCKY,  1799; 
OHIO,  1802;  INDIANA,  1816.  Also  the  constitutions  of  Virginia, 
North  Carolina,  Delaware,  Illinois,  and  others. 

Several  of  the  constitutions  contain  a  clause  similar  to  the  following 
in  that  of  Illinois,  in  1828,  and  perhaps  now:  If,  when  the  sense  of 


400  CITIZENSHIP,  ALLEGIANCE,  AND  TREASON. 

the  people  shall  be  taken,  as  to  holding  a  convention  to  change  the 
organic  law,  "it  shall  appear  that  a  majority  of  all  the  citizens  of  the 
state  .  .  .  have  voted  for  a  convention,"  the  general  assembly  shall 
call  one. 

For  further  information  on  this  subject,  see  generally  the  original 
state  constitutions.  Some  modern  ones  may  be  framed  on  Presi- 
dent Jackson's  mischievous  idea  of  a  "transfer  of  citizenship  to  the 
government  of  the  united  states,"  for  it  is  not  uncommon  in  these 
bad  and  sad  days,  for  ignorance .  and  wickedness  to  accomplish, 
through  organic  laws,  what  force  and  fraud  are  constantly  doing  in 
spite  of  them.1 

Testimony  of  the  States  on  Allegiance.  —  As  the  only  citizenship 
is  in  the  state,  the  only  allegiance  is  due  to  it.  We  have  no  king  or 
prince,  and  no  tie  of  allegiance  that  is  not  in  the  social  compact  form- 
ing the  republic ;  and  it  is  remarkable  and  conclusive  that  the  only 
constitutional  declarations  and  claims  of  allegiance  in  the  united  states, 
are  by  states,  there  being  no  such  claim  in  the  federal  compact,  either 
expressly  or  by  implication.  In  many  state  constitutions  the  claim 
of  allegiance  is  found  in  juxtaposition  with  the  sovereignty,  citizen- 
ship, and  treason  clauses. 

MASSACHUSETTS,  the  great  original  exponent  of,  and  stickler  for, 
state  sovereignty  in  the  union,  exacts  the  following  oath  of  allegiance 
from  all  her  officers  :  "  I,  A.  B.,  do  solemnly  swear  that  I  will  bear 
true  faith  and  allegiance  to  the  commonwealth  of  Massachusetts,  and  will 
support  the  constitution  thereof.  So  help  me  God." 

NEW  HAMPSHIRE  has  a  similar  oath. 

1  A  democratic  caucus  of  congressmen  is  said  to  have  "resolved"  at  Washington, 
two  or  three  years  ago  (probably  as  a  guess  at  the  meaning  of  Amendment  XIV.), 
"that  the  government  of  the  united  states  and  the  government  of  the  several  states  are 
distinct,  and  each  has  citizens  of  its  own,  who  owe  it  allegiance;'11  that  is  to  say.  the 
citizens  do  not  belong  to  the  states  or  the  nation,  but  to  the  governments  thereof;  and 
they  owe  their  allegiance  to  the  said  agencies,  and  not  to  the  principals  and  sovereigns 
—  the  people.  If  this  statement  be  not  the  reductio  ad  absurdum,  the  entire  baseless- 
ness of  it  becomes  apparent  when  we  reflect  that  Amendment  XIV.  was  not  purposed  to 
change  the  political  and  civil  status  of  thirty  odd  millions  of  self-organized  and  self- 
governing  people,  s^)  as  to  make  them  citizens  of,  and  allegiant  to,  governmental  agen- 
cies, instead  of  the  collective  form  of  themselves,  but  simply  aimed  to  citizenize  the 
negroes,  and  provide  for  them  in  their  new  character.  So  that  when  the  said  amend- 
ment says  the  people  are  citizens  of  the  united  states,  and  of  the  states,  it  repeats  the 
phrases  of  the  original  constitution, — simply  reversing  their  order  —  and,  in  effect, 
reiterates  "the  supreme  law"  that  "the  people"  (now  meaning  by  that  expression 
blacks  as  well  as  whites)  are  citizens  of  different  states  [Art.  III.  §  2],  with  the  right  to 
"all  privileges  and  immunities  of  citizens  in  the  several  states"  [Art.  IV.  §  2]  to  which 
the}'  may  go. 

The  flagrantly  revolutionary  character  of  this  "expounding"  will  be  realized  in 
studying  the  diagram  and  explanation  on  pp.  308,  309,  supra,  and  the  extract  from 
No.  46  of  the  Federalist,  in  Appendix  D.  It  will  be  seen  that  these  expounders  —  as 
Madison  said  of  their  prototypes  —  "  LOSE  SIGHT  OF  THE  PEOPLE  !  " 


AMERICAN   CITIZENSHIP  AND  ALLEGIANCE.  401 

VERMONT  requires  *'  every  officer,  whether  judicial,  executive,  or 
military,  to  take  and  subscribe  the  following  oath  or  affirmation  of 
allegiance  to  this  state  "  (then  follows  the  form).  She  further  de- 
clared, in  her  constitution  of  1793,  that  "every  person  of  good  char- 
acter, coming  to  settle  in  the  state,"  may  acquire  and  hold  real 
property,  and  have  " all  rights  of  a  natural-born  subject  of  this  state" 
after  "taking  an  oath  or  affirmation  of  allegiance  to  the  same." 

KENTUCKY,  in  her  constitution  of  1799,  imposes  the  following  oath 
of  allegiance  on  all  her  officers :  "  I  do  solemnly  swear  that  I  will  be 
faithful  and  true  to  the  commonwealth  of  Kentucky  so  long  as  I 
continue  a  citizen  thereof." 

GEORGIA,  in  her  constitution  of  1798,  required  all  officers  to  swear 
to  observe  true  faith  and  allegiance  to  the  same. 

MARYLAND  has,  in  her  constitution,  the  following  oath  for  her  offi- 
cers ;  "  I,  A.  B.,  do  swear  .  .  .  that  I  will  be  faithful  and  bear  true 
allegiance  to  the  state  of  Maryland." 

Other  constitutions  could  be  cited,  but  these  will  suffice. 

I  will  observe,  en  passant,  that  some  of  the  later  constitutions 
require  the  official  citizen  to  swear  to  support  both  the  federal  and 
the  state  constitutions ;  but  this  is  none  the  less  an  oath  of  allegiance 
to  the  state,  both  constitutions  being  her  fundamental  laws. 

These  quotations  show  that  the  union  was  formed  with  full  evi- 
dence in  the  very  organic  laws  of  the  states  forming  it,  that  citizen- 
ship and  allegiance  belong  alone  to  the  states,  which  is  precisely 
what  the  federal  compact  itself  proves,  as  heretofore  shown.  Nay 
more,  as  Vermont  and  Kentucky  were  admitted  in  1793  and  1799 
with  the  provisions  concerning  allegiance  just  quoted,  all  the  states 
(i.  e.  all  the  people),  as  well  as  the  federal  government,  are  concluded 
against  denying  that  the  allegiance  of  a  citizen  is  solely  due  to  his 
state. 

And  all  these  state  constitutions  contain  a  treason  clause  which  is 
just  as  applicable  to  a  citizen  fighting  for  and  aiding  the  "Union" 
against  his  state,  as  it  is  for  his  doing  so  for  any  other  assailant. 
This  will  be  conclusively  shown  further  along. 

Furthermore,  the  obligation  of  the  oath  to  support  and  defend  the 
constitution  binds  every  federal  officer  to  act  on  the  idea  that  cit- 
izenship belongs,  and  allegiance  is  due,  to  states ;  not  only  because 
the  said  constitution  declares  the  citizen  to  belong  to  the  state,  but 
because  allegiance  is  an  essential  and  ante-constitutional  right,  per- 
taining to  the  very  existence  of  the  state,  which,  if  it  could  be,  is 
not  expressly  granted,  and  hence  must  be  among  the  state's  reserved 
rights.  He  must  defend  the  states,  because  they  are  the  parties  to, 
and  actors  under,  the  compact.  They  exclusively  are  all  there  is  of 


402  CITIZENSHIP,  ALLEGIANCE,  AND  TREASON. 

united  states  or  government,  and  he  must  be  a  citizen  and  subject  of 
a  state  before  he  can  be  a  united  states  officer. 

So,  in  every  point  of  view,  President  Jackson's  assertion  of  the  trans- 
fer of  citizenship  and  allegiance  is  untrue  and  baseless.  Society  as 
formed  is  sovereign,  the  members  being  citizens  and  subjects  bound 
in  the  social  compact ;  which  is  the  only  possible  tie  of  allegiance,  for 
the  double  reason  that  there  is  no  king,  and  that  society  actually 
rules  and  protects  its  subjects,  and  is  therefore  necessarily  entitled  to 
the  reciprocal  obligation  of  allegiance. 

Jefferson  Davis  or  Robert  Lee,  then,  never  violated  any  allegiance, 
as  he  never  "  levied  war  against "  Mississippi  or  Virginia,  or  any  set 
of  states  that  she  was  in  point  of  fact  united  to,  or  adhered  to  their 
enemies,  giving  them  aid  and  comfort."  There  can  be  no  other 
united  states,  as  to  Davis,  than  his  state  and  her  sisters,  who  choose 
to  be  associated.  He  therefore  comes  not  within  the  federal  treason 
clause.  His  sovereign  had  a  political  will,  in  which  his  own  was 
necessarily  merged,  and  he,  as  but  one  of  her  hundreds  of  thousands 
of  citizens,  could  but  yield  to  the  power  which,  de  facto,  had  constitu- 
tional possession  of  him,  and  which  deported  him  from  the  union,  re- 
gardless of  his  will,  and  commanded  him  to  defend  her.  He  could 
not  do  otherwise  than  obey,  leaving  the  settlement  of  all  questions 
of  technical  right  to  tribunals,  to  negotiation,  or  to  the  arbitrament 
of  war. 

I  reiterate,  then,  that  the  citizens  are  the  state,  and  that  the  only 
citizenship  and  allegiance  in  the  American  polity,  and  contemplated 
by  the  fathers,  were  of  and  to  states.  Q.  E.  D. 


CHAPTEE  VIII. 

THE  STATE  IS  ABSOLUTE  OVER  THE  SOLDIERY. 


3.  'HpHE  state  being  the  citizens  thereof,  and  the  arms-bearing 
JL  citizens  being  the  military  force,  the  state  has  the  original 
and  supreme  right,  coupled  -with  the  duty,  to  control  the  said  force, 
for  her  defence. 

Their  social  instinct,  and  their  instinct,  right,  and  duty  of  self-pres- 
ervation, moved  the  people  to  form  themselves  into  commonwealths, 
to  protect  themselves  and  their  belongings.  For  further  security 
they,  as  states,  afterwards  united  in  federal  union  :  "  to  bind,  in  one 
ligament,  the  strength  of  thirteen  states."  [Pendleton  in  Va.  conv.] 

Politically  speaking,  "  the  people  "  —  as  has  been  said  —  could  only 
exist  and  exert  will  as  states.  It  was  only  as  states  that  they  could 
create  and  operate  a  federal  government,  or  governmental  agency. 
Now,  look  at  the  proposition,  that  "  the  people's  "  own  agent  —  the 
federal  government  —  can  draw  them,  as  individual  soldiers,  from  the 
state,  and  arm,  train,  and  compel  them,  under  penalties,  to  fight 
the  body  politic  they  themselves,  and  their  families,  friends,  and 
neighbors,  compose;  or,  in  other  words,  that  the  voting  and  fighting 
men,  who  practically  constitute  the  state,  can  by  her  federal  agency 
be  marshalled,  'armed,  and  led  to  whip  the  women  and  children 
thereof! 

The  military  force  contemplated  for  the  united  states  was  primarily 
the  people  —  the  citizen  soldiery.  The  people  were  to  think  for 
themselves,  vote  for  themselves,  fight  for  themselves  ;  and  since  inde- 
pendence, they  never  have  had  the  slightest  sparkle  of  political  exist- 
ence, or  capacity  for  political  action,  either  in  peace  or  war,  except  as 
states  —  absolute  commonwealths. 

What  does  Massachusetts  say?  —  The  old  Bay  State  never  thought 
otherwise.  She  regards  the  militia  as  her  soldiers,  and  the  only  pur- 
pose of  them  to  be  her  defence  ;  and  she  considers  federal  control  as 
exceptional,  and  as  specifically  agreed  upon  and  ordained  by  herself 
and  her  sister  states  for  her  and  their  "  defence  "  and  "  welfare,"  and 


404  CITIZENSHIP,   ALLEGIANCE,   AND   TREASON. 

the  preservation  of  "  the  blessings  of  liberty  "  common  to  all  of  them, 
principal  among  which  blessings,  are  the  rights  of  complete  self-organ- 
ization and  existence,  self-association,  self-protection,  and  self-ruling, 
as  commonwealths,  whether  several  or  united. 

Hence  she  declares  herself  to  be  the  absolute  sovereign  of  her  terri- 
tory and  people ;  she  organizes  her  citizens  as  soldiers ;  she  appoints 
and  commissions  all  military  officers ;  she  requires  of  all  officials  an 
oath  of  allegiance  to  her ;  she  defines  treason  of  her  citizens  or  sub- 
jects to  be  the  waging  of  war  against  her,  and  giving  aid  and  com- 
fort to  her  enemies ;  and  she  attaches  to  it  the  penalty  of  death ;  and 
by  these  means  she,  with  original,  inherent,  and  supreme  right,  abso- 
lutely controls  her  militia,  i.  e.  the  whole  body  of  her  citizens  capable 
of  bearing  arms. 

Her  fundamental  law  declares  that  her  governor  is  the  "cotn- 
mander-in-chief  of  all  her  land  and  naval  forces,"  and  is  empowered 
and  instructed,  "for  the  special  defence  and  safety  of  the  common- 
wealth, to  assemble  in  martial  array,  and  put  in  warlike  posture,  the 
inhabitants  thereof,  and  to  lead  and  conduct  them ;  and  with  them 
to  encounter,  repel,  resist,  expel  and  pursue,  by  force  of  arms,  .  .  . 
and  also  to  kill,  slay,  and  destroy,  ...  all  and  every  such  person 
and  persons  as  shall  at  any  time  hereafter,  in  a  hostile  manner,  at- 
tempt or  enterprise  the  destruction,  invasion,  detriment,  or  annoy- 
ance of  this  commonwealth."  Here  is  provision  for  her  whole  military 
force  to  be  used  to  defeat  usurpation,  or  repel  aggression  of  the  fed- 
eral government ;  and  this  would  have  been  done,  in  the  second 
British  war,  if  the  said  government  had  persisted  in  its  claims,  and 
peace  had  not  supervened.  If  she  thought  the  federal  government 
sovereign  over  her  as  a  political  body,  why,  in  1795,  did  she  deem  it 
unnecessary  and  inexpedient  to  change  the  above,  and  her  declaration 
of  "  sovereignty  "  1  And  why  did  she,  in  the  convention  of  1820,  re- 
ject an  amendment  modifying  the  above  article  1  Simply  because  she 
has  never  parted  with  her  sovereignty,  and  she  is  determined,  when 
occasion  shall  arise,  to  defend  it  with  her  whole  physical  force.  Her 
declarations  of  absolute  sovereignty,  and  the  provisions  for  the  use  of 
all  her  strength,  remain  her  organic  laws  now.  She  claims  the  right 
to  use  force  against  the  federal  government ;  and,  as  will  be  seen,  she 
says  emphatically,  that  she  intends  to  use  it  when  she  deems  it  neces- 
sary. And  she  is  right,  for  the  militia  are  her  subjects,  and  the  federal 
government  can  have  no  authority  over  them  but  what  she  expressly 
confides  or  entrusts. 

And  she  and  the  other  states  always  meant  by  the  maxim  that  the 
military  is  and  must  be  kept  subordinate  to  the  civil  authority,  that  it 
belongs  to  and  is  under  the  state,  as  its  means  and  instrument  of  self- 


THE   STATE  IS  ABSOLUTE   OVER  THE   SOLDIERY.       405 

government  and  self-protection,  whenever  public  fighting,  or  a  show 
of  public  force,  is,  or  may  be,  needed.  It  can  only  have  power  and 
existence  under  the  law,  and  must  of  course  be  always  subordinate 
to,  and  controlled  by,  the  source  of  the  law,  the  organized  will  of  the 
people. 

And  it  is  well  to  say  here,  that  the  constitution  throughout  con- 
templates the  use  of  men  and  means  in  warfare,  for  the  "  defence  "  of 
the  people,  and  never  for  attack.  Self-attack,  and  possible  self-destruc- 
tion, could  never  be  predicated  or  presumed  of  the  intention  of  states, 
in  uniting  for  "  defence  "  and  "  welfare." 

Her  Political  Action  in  the  Union.  —  In  her  law  entitled  "  An  act 
for  regulating,  governing,  and  training  the  militia  of  this  common- 
wealth," passed  March  6,  1810,  she  quotes  from  the  act  of  congress 
"  to  provide  for  the  national  defence,  by  establishing  a  uniform  militia 
throughout  the  united  states,"  passed  May  8th,  1792,  the  provision 
"  that  each  and  every  free  able-bodied  citizen  of  the  respective  states, 
resident  therein,"  who  is  over  eighteen  and  under  forty-five,  shall  be 
enrolled,  etc.;  and  she  then  proceeds  to  provide  for  her  most  absolute 
control  of  her  militia.  Among  other  provisions  showing  her  autocratic 
determination  in  this  regard,  are  those  referring  to  the  appointment 
and  commissioning  of  the  officers,  and  the  oaths  to  be  exacted  from 
each.  The  latter  are  as  follows  :  — 

1.  "  I,  A.  B.,  do  truly  and  sincerely  acknowledge,  profess,  testify, 
and  declare,  that  the  commonwealth  of  Massachusetts  is,  and  of  right 
ought  to  be,  a  free,  sovereign,  and  independent  state.  And  I  do 
swear  that  I  will  bear  true  faith  and  allegiance  to  the  said  common- 
wealth, and  that  I  will  defend  the  same  against  traitorous  conspiracies, 
and  all  hostile  attempts  whatsoever ;  and  that  I  do  renounce  all  alle- 
giance, subjection,  and  obedience  to  the  king,  queen,  or  government  of 
Great  Britain,  and  every  other  foreign  power  whatsoever;  and  that 
no  foreign  prince,  person,  prelate,  or  state  hath,  or  ought  to  have, 
any  jurisdiction,  superiority,  pre-eminence,  authority,  dispensing  or 
other  power  in  any  matter,  civil,  ecclesiastical,  or  spiritual,  within 
this  commonwealth,  except  the  authority  and  power  which  is,  or  may 
be  vested,  by  their  constituents,  in  the  congress  of  the  united  states. 

And  I  do  further  testify  and  declare  that  no  man,  nor  body  of  men, 
hath  or  can  have  any  right  to  absolve  or  discharge  me  from  the 
obligation  of  this  oath,  declaration,  or  affirmation ;  and  that  I  do 
make  this  acknowledgment,  profession,  testimonial,  declaration,  de- 
nial, renunciation,  and  abjuration,  heartily  and  truly,  according  to 
the  common  meaning  and  acceptation  of  the  foregoing  words,  with- 
out any  equivocation,  mental  evasion,  or  secret  reservation  whatsoever, 
so  help  me  God  "  ! 


406  CITIZENSHIP,   ALLEGIANCE,  AND  TREASON. 

2.  The  oath  of  office  to  discharge  the  duties  faithfully  according  to 
"  the  constitution  and  laws  of  this  commonwealth." 

3.  "  I,  A.  B.,  do  swear  that  I  will  support  the  constitution  of  the 
united  states." 

Ah !  in  the  brave  days  of  old,  she  was  autocratic  in  voice  and  act. 
She  had  riot  then  been  degraded  by  her  own  sons  to  a  county  or  prov- 
ince —  a  mere  jewel  in  the  crown  of  King  Union  ! 

How  did  she  act  in  1814  when  her  federal  government  was  warring 
in  defence  of  her  rights  1  As  a  county  1  Oh,  no !  Her  agency  at 
Washington  wanted  some  of  her  soldiers  to  use  "for  the  common 
defence  " —  including  hers,  of  course."  She  constantly  opposed  the 
war  and  requisitions,  and  when  she  feared  the  federal  powers  she 
thought  to  be  usurped  were  about  to  be  executed  on  her  men  and  means, 
she,  with  Connecticut  and  Rhode  Island,  and  a  few  delegates  from 
other  states,  held  the  Hartford  Convention,  which  thus  expressed  her 
views  as  a  sovereign  :  "In  this  whole  series  of  devices  and  measures 
for  raising  men,  this  convention  discern  a  total  disregard  for  the  con- 
stitution, .  .  .  and  a  disposition  to  violate  its  provisions,  demanding 
from  the  individual  states  a  firm  and  decided  opposition.  .  .  .  Acts 
of  congress,  in  violation  of  the  constitution,  are  absolutely  void.  .  .  . 
It  will  be  proper  for  the  several  states  to  await  the  ultimate  disposal 
of  the  obnoxious  measures  recommended  by  the  secretary  of  war,  or 
pending  before  congress ;  and  so  to  use  their  power,  according  to  the 
character  these  measures  shall  finally  assume,  as  effectually  to  protect 
their  own  sovereignty,  and  the  rights  and  liberties  of  their  citizens." 
The  convention  proceeds  "to  recommend  to  the  legislatures  of  the 
states  represented  therein,  to  adopt  all  such  measures  as  may  be 
necessary  effectually  to  protect  the  citizens  of  the  said  states  from  the 
operation  and  effects  of  all  acts  of  congress  " —  such  as  those  above 
characterized  ;  also  to  recommend  negotiations  with  the  federal  gov- 
ernment ;  and  also,  "  if  the  application  of  these  states  be  unsuccessful, 
that  they  hold  a  convention  at  Boston  next  June,  with  such  powers 
and  instructions  as  the  exigency  of  a  crisis  so  momentous  may 
require." 

Fortunately,  however,  the  ambassadors  sent  by  Queen  Massachu- 
setts soon  reported  that  "  peace  "  "  happily  superseded  the  necessity 
of  the  arrangements  [being  made]  for  the  defence  of  the  common- 
wealth." 

To  sum  up,  then,  although  Massachusetts  may  have  been,  as  some 
think,  selfish  and  ungenerous,  as  well  as  morally  wrong,  she  was  con- 
stitutionally on  impregnable  ground.  She  was  no  mere  province. 
Possessing  original,  inherent,  and  unlimited  rights,  but  no  deriva- 
tive ones  whatever,  she  was  an  independent  state,  with  a  sovereign 


THE  STATE  IS  ABSOLUTE  OVER  THE  SOLDIERY.       407 

will ;  and  she  simply  acted  as  such.  And  though  she  and  others  may 
by  war  have  forced  the  subject  states  to  "  consent "  to  a  change  of 
faith  and  works,  yet  she  keeps  the  old  faith.  By  legislative  act  of  May 
8th,  1866,  she  puts  herself  on  a  war  footing,  evidently  knowing  that 
the  precedent  of  coercing  states  might  be  applied  to  her.  In  said  act, 
she  provides  that  every  commissioned  officer  shall,  before  doing  duty, 
take  and  subscribe  the  following  oaths  and  declarations  :  "  I,  A.  B.,  do 
solemnly  swear  that  I  will  bear  true  faith  and  allegiance  to  the  com- 
monwealth of  Massachusetts;  and  I  will  support  the  constitution 
thereof;  so  help  me  God."  He  is  also  sworn  to  do  the  duties  of  the 
office,  and  to  support  the  constitution  of  the  united  states. 

I  reiterate,  then,  on  the  high  and  august  authority  of  Queen  Mas- 
sachusetts, the  third  idea  of  the  point  under  discussion,  the  republican 
idea  :  that  the  state  being  the  citizens  thereof,  and  the  arms-bear- 
ing citizens  being  the  military  force,  the  state  has  the  original  and 
supreme  right,  coupled  with  the  duty,  to  control  the  said  force, 
for  her  defence.  Q.  E.  D. 


CHAPTER  IX. 
DEFENDING  ONE'S  STATE  IS  SELF-DEFENCE. 

4.   '"T^HAT  citizens,  by  defending  the  state,  are  defending  them- 
JL     selves,  as  required  by  Nature's  first  and  most  imperative 
law. 

Man,  the  natural  being,  is  not  more  a  creation  of  God,  than  is  the 
civil  being  called  the  state ;  for  the  latter  is  formed  by  men,  under 
the  promptings  of  the  nature  created  by  the  Deity.  Self-preservation 
is  the  first  law  for  both  man  and  state;  and,  indeed,  man  was 
prompted  to  form  society  by  this  very  instinct,  society  simply  being 
men  organized  for  self-preservation. 

Republican  society  is  necessarily  a  consensual  arrangement  of  the 
people  who  compose  it ;  for  as  every  man  has  a  right  to  expatriate 
himself,  his  staying  therein,  and  being  a  part  thereof,  is  by  consent. 
The  accountability  of  the  members  to  God  for  proper  conduct  in  all 
things,  shows  the  self-ruling  of  society  to  involve  the  only  divine  right 
of  government  that  can  be  vested  in  human  beings.  Such  account- 
ability were  unjust,  if  such  right  were  withheld  or  limited.  To  state 
it  more  amply,  it  is,  1st,  the  right  to  be  a  self-formed  society ;  2d, 
the  right  of  the  said  society  absolutely  to  govern  itself;  and  3d,  the 
said  society's  unlimited  right  of  self-defence.  As  to  the  last  point  — 
the  others  having  been  sufficiently  treated  of —  the  same  God-given 
instinct  of  self-preservation  which,  as  heretofore  stated,  prompted  men 
to  form  society,  must  make  self-preservation  "the  first  law  of  nature  " 
to  it,  just  as  surely  as  it  is  "  the  first  law  of  nature  "  to  each  member 
thereof. 

Hence,  as  an  American  state  is  the  only  political  society  of  the 
people  ever  formed ;  as  such  state  is  "  the  people  ;  "  as  it  is  recognized, 
throughout  the  federal  pact,  as  the  complete  body  that  coacted  with 
its  peers  in  forming  the  federal  constitution  of  self-government  ;  as  it 
"contains  within  itself"  —  to  use  the  words  of  Hamilton  —  "all  the 
powers  of  government ;"  as  it  declares  all  power  [i.  e.  sovereignty]  to 
be  inherent  in  itself;  and  as  the  only  powers  parted  with  are  dele- 
gated, —  it  follows  necessarily  that  this  moral  person  can  at  any  mo- 


DEFENDING  ONE'S   STATE  IS  SELF-DEFENCE.  409 

ment,  with  or  without  reason,  and,  d,  fortiori,  for  self-preservation, 
gather  in  all  her  entrusted  or  delegated  powers,  recall  her  citizens 
from  federal  offices,  and  say  to  them,  and  the  rest  of  her  sons,  in  case 
of  federal  menace  or  attack  :  "  I  am  the  state,  and  you  collectively 
are  myself — '  bone  of  my  bone  and  flesh  of  my  flesh.'  Arm  your- 
selves to  defend  my  life,  my  integrity,  and  my  sovereignty  !  The 
collective  people,  according  to  the  social  compact,  have  the  right  to 
govern  and  command  the  individual.  By  obeying  and  defending 
myself,  my  will,  and  my  law,  you  defend  your  individual  selves,  and 
all  you  hold  dear  on  earth." 

The  question  here  suggests  itself  for  passing  notice  :  Where  is  the 
right  of  ultimate  judgment  and  decision  on  points  vital  to  the  repub- 
lic —  the  commonwealth  —  the  citadel  of  freedom,  and  the  palladium 
of  the  people's  rights  and  blessings  ?  It  were  simply  absurd  to  say  : 
It  is  in  the  government,  which  is  only  derivative ;  and  not  in  the 
collective  people,  who  have,  inalienably,  the  only  original  and  inherent 
power  of  self-government.  Did  the  people,  in  attempting  to  govern 
themselves,  make  a  machine  that  has  the  right,  if  they  resist,  to 
grind  them  to  powder  ]  The  matter  is  too  plain  for  argument.  [See 
Part  IV.  ch.  XL] 

It  is  unquestionable,  then,  that,  by  defending  the  state,  citizens 
are  defending  themselves,  as  required  by  nature's  first  and  most  im- 
perative law.  Q.  E.  D. 

DEFENDING  ONE'S  STATE   IS   NOT   TREASON. 

5.  That,  as  the  citizens  in  organization  are  the  integers  and  gov- 
erning authority  of  the  republic,  a  citizen  cannot  commit  treason 
by  obeying  the  will  of  the  body,  for  this  is  precisely  his  obligation 
in  the  social  compact,  and,  of  course,  his  highest  political  duty. 

This  corollary  is  so  important  and  vital,  that  I  feel  justified  in 
repeating,  that  the  Almighty,  in  making  men  free  moral  agents, 
designed  them  for  self-government,  and  capacitated  them  for  it ;  that 
it  were  Divine  injustice  to  require  them  to  answer  for  "the  deeds 
done  in  the  body,"  if  they  have  not  full  choice  in  all  matters  of 
government ;  that,  prompted  by  the  social  instinct,  they  form  society 
to  unite  their  strength,  wisdom,  and  means  for  self-protection  and 
self-rule ;  that  thus  is  the  society,  called  the  commonwealth,  formed  j 
that  it  governs  by  Divine  right,  and  acts  in  all  things  as  a  unit  or 
moral  person ;  that  it  is  only  in  this  collective  form  and  way  that 
men  are  capable  of  political  self-government ;  that  as  individuals  they 
are  merged  in  the  society,  without  the  reservation  of  any  political 
rights  whatever,  and  are  under  voluntary  engagement  to  be  governed 
and  bound  by  the  action  of  the  said  state,  as  long  as  they  remain 


410  CITIZENSHIP,  ALLEGIANCE,  AND  TREASON. 

members  thereof.  Referring  to  Part  IV.,  chapters  I.  and  II.,  on  the 
formation  of  a  state,  I  will  quote  here,  as  sufficient  —  nay,  conclusive 
—  what  Massachusetts  has  declared  from  the  beginning  till  now,  viz. : 
that  "  the  body  politic  is  ...  a  voluntary  association  of  individuals ;" 
and  that  "  the  whole  people  covenant  with  each  citizen,  and  each  cit- 
izen with  the  whole  people,  that  all  shall  be  governed  by  certain  laws 
for  the  common  good ;"  that  is  to  say,  the  collective  members  are  to 
govern  and  control  each  individual  one,  for  all  the  purposes  of  society. 

Accordingly,  she  declares  that  "  the  people  ...  do  hereby  solemnly 
and  mutually  agree  with  each  other,  to  form  themselves  into  a  free, 
sovereign,  and  independent  body-politic  or  state,  by  the  name  of  The 
Commonwealth  of  Massachusetts"  [See  const.  Mass.] 

Hence  each  person  is,  as  New  York  calls  him,  a  "  member  of  this 
state,"  or  as  Massachusetts  expresses  it,  a  "  subject  of  this  common- 
wealth," or  as  the  federal  and  other  constitutions  declare,  a  "  citizen 
of  the  state."  Indeed,  each  person  is  an  integral  part  of  his  own 
commonwealth,  and  no  original  relations  can  exist  between  him  and 
any  other  political  society.  And  as  neither  the  federal  constitution 
nor  history  hints  at  an}'  other  relation,  or  at  even  the  slightest  change 
in  the  bodies-politic,  any  one  of  them,  as  to  subjectship  and  allegiance, 
must  stand  in  the  same  relation  to  her  people  as  does  king,  prince, 
or  feudal  lord  to  his ;  and  be  the  only  object  of  treason. 

And  here  comes  in  with  peculiar  force  the  admission  of  Mr.  Curtis, 
heretofore  quoted,  [see  Part  IV.  chapter  VII.]  :  "  The  relations  of  the 
individual  to  the  political  society,  of  which  he  is  a  member  .  .  .  came 
into  existence  as  soon  as  a  sovereign  American  state  was  formed  out 
of  a  revolted  British  colony." 

Our  Federal  Compact  changed  Neither  States  nor  Citizens.  — We 
must  steadily  and  determinedly  keep  it  in  mind  that  the  states,  in 
making  their  constitution,  were  providing  for  government,  and  not 
constituting  society.  They  themselves  were  societies,  complete  ones  ; 
and  their  citizens  were  the  integers,  making  up  the  state  in  each 
instance,  just  as  bricks  and  lumber  make  up  the  building.  At  that 
very  time,  New  York  called  them  "members"  of  herself;  Massachu- 
setts called  them  "  subjects  "  of  herself,  as  did  Vermont ;  the  states 
generally  characterized  them  as  "  citizens "  of  themselves ;  and  the 
federal  compact  repeatedly  provided  for  all  "THE  PEOPLE  OF  THE 

UNITED  STATES  "  as  "  CITIZENS  OF  DIFFERENT  STATES." 

It  is  certain,  then,  that  each  and  every  American  citizen  had,  at 
the  beginning,  i.  e.  before  as  well  as  after  the  constitution  was  formed, 
the  status  of  the  citizen  of  a  state  ;  and  it  is  equally  certain  that  the 
doctrine  of  a  national  citizenship  is  an  untruth  —  an  absurdity. 
Surely  so  important  an  event  as  the  change  of  the  status  of  citizens  of 


DEFENDING  ONE'S   STATE  IS   SELF-DEFENCE.  411 

states,  so  as  to  give  them  the  status  of  citizens  of  an  all-comprehend- 
ing state  or  nation,  would  have  a  conspicuous  history ;  but  there  is  no 
evidence  of  it  —  not  a  word  ! 

Having  shown  that  no  change  was  made  in  the  status  of  citizens  by 
the  original  compact,  let  me  show  that 

No  Change  is  made  by  the  Late  Amendments.  — Amendment  XIV., 
the  only  one  that  could  have  such  effect  —  provides  that  "  all  persons 
born  or  naturalized  in  the  united  states,  and  subject  to  the  jurisdic- 
tion thereof,  are  citizens  of  the  united  states,  and  of  the  states  wherein 
they  reside." 

This  —  construed,  as  it  must  be,  with  the  rest  of  the  constitution, 
so  as  to  make  all  parts  effective,  there  being  no  inconsistency  —  leaves 
citizenship  as  a  status  precisely  where  it  was :  the  first  idea  in  im- 
portance being  that  the  people  are  "  citizens  of  different  states  "just  as 
they  are  all  repeatedly  described  and  provided  for  in  the  constitu- 
tion ;  and  the  second  idea  is  couched  in  the  convenient  generalization 
—  "  citizens  of  the  united  states,"  which  can  only  mean  "  citizens  of 
different  states  "  who,  in  the  compact  of  their  sovereigns,  are  provided 
for  as  follows  (italics  mine) :  "  The  citizens  of  each  state  shall  be  en- 
titled to  all  privileges  and  immunities  of  citizens  in  the  several  states" 
[Art.  IV.  §  2.] 

This  is  all  that  Amendment  XIV.  can,  as  to  this  subject,  possibly 
mean  —  except  that  within  its  description  come  the  negroes,  who  are 
citizenized  thereby,  and  made  the  equals  of  the  former  "  citizens  of 
different  states  "  and  "  citizens  of  the  united  states."  There  is  in  the 
amendment  no  sign  of  any  intent,  1st,  to  change  previous  citizens  in 
their  status  ;  or  2d,  to  make  unequal  citizens,  i.  e.,  to  place  the  new 
ones,  in  any  respect,  on  any  different  footing  from  the  old  ones. 

I  submit,  then,  these  conclusions  :  — 

1.  That  there  was  in  the  original  constitution  no  change   of  the 
status  of   "  citizens  of  different  states  "  who  are  "  citizens  of  the  united 
states." 

2.  That  this  status  was  not  changed  by  Amendment  XIV.,  but  that 
the  negroes  had  such  status  conferred  on  them  by  it. 

3.  That,  with  this  exception,  the  late  amendments  merely  extend 
federal  civil  jurisdiction. 

4.  That  federal  coercion  is,  as  originally  intended,  on  persons  only, 
and  is  that  of  law,  through  the  magistracy. 

5.  That  the  people  are  the  state,  and  the  state  is  the  people ;  these 
entities,  as  named  and  provided  for  in  "the  supreme  law,  "  being  in  no 
wise  changed. 

The  error  of  the  expounders  on  this  subject  springs  from  forget- 
ting that  the  commonwealth  or  republic  is  a  society  of  people,  purposed 


412  CITIZENSHIP,  ALLEGIANCE,  AND   TREASON. 

and  organized  for  self-government;  and  that  hence  self-government 
must  be  functional  action,  in  nowise  self-destructive,  or,  even  self-inju- 
rious. The  state  is  complete,  and  is  perfectly  formed  and  fitted  to  do 
all  the  acts  of  government,  e.  g.,  constitute  governments,  delegate 
powers,  elect  or  appoint  representatives,  federate  with  other  societies, 
&c.,  &c.  These  are  all  functional  acts,  to  do  which  she  has  the 
machinery  of  intellect — including  the  judgment  and  will,  which  she 
has  always  acted  with,  whenever  any  question  arose  pertaining  to  her 
"defence"  and  "welfare."  In  her  constitution  of  1780,  existent 
to-day,  Massachusetts  declares  her  "  right  to  institute,  reform,  alter 
or  totally  change"  the  government  "at  pleasure."  She  has  done 
so  many  times,  notably  when  she  united  with  her  sisters  and  made  a 
general  government.  This  act  wrought  no  change  in  her ;  and  the 
word  "Massachusetts  "  must  mean  to-day  what  it  did  in  1788,  when 
that  sovereign  placed  it,  with  her  delegations,  stipulations,  and  condi- 
tions, in  the  federal  compact.  She  was  not  then  melted  into  her 
elements,  and  poured  into  a  national  mould.  She  is  now  unchanged 
Massachusetts,  and  can  do  every  functional  act  she  ever  could.  She 
is  composed  exclusively  of  her  members  or  subjects,  and  in  governing 
herself  she  controls  them. 

Hence  I  repeat  that,  as  the  citizens  in  organization  are  the  inte- 
gers and  governing  authority  of  the  republic,  a  citizen  cannot  commit 
treason  by  obeying  the  will  of  the  body,  for  this  is  precisely  his  obli- 
gation in  the  social  compact,  and,  of  course,  his  highest  political 
duty.  Q.  E.  D. 


CHAPTEE  X. 

ALL  TREASON  IS  AGAINST  THE  STATE. 

6.  /CONSISTENTLY   with   the     foregoing,    the    federal     consti- 

^-^  tution  itself  proves  the  state  to  be  the  sole  object  of  treason. 

In  discussing  this. point,  I  do  not  aim  at  a  historical,  legal,  or  philo- 
sophical disquisition  on  the  subject,  so  much  as  to  show  the  design 
of  the  framers ;  the  intent  of  the  commonwealths ;  the  impression 
made  upon  the  people ;  and,  in  short,  the  understanding  with  which 
all  acted. 

Not  only  does  the  federal  instrument,  as  we  have  seen,  prove  citi- 
zenship and  allegiance  to  belong  to  states,  but  it  gives  a  striking  cor- 
roboratiou  of  the  view  I  have  presented  on  treason.  We  have  seen 
that  the  states,  by  ratifying,  ordained  and  established  the  constitution, 
to  provide  for  and  effect  their  defence  and  welfare,  and  secure  the 
blessings  of  liberty  to  themselves  and  their  people ;  that,  ^pso  facto, 
the  ratifiers  associated  themselves ;  that  they  are  named  in  the  instru- 
ment and  recognized  throughout,  and  especially  in  the  last  article,  as 
the  only  parties,  and  the  prospective  actors ;  and  that  the  said  con- 
stitution is  their  law  —  their  supreme  law. 

The  Treason-Clause  is  the  Law  of  the  States.  —  Of  course  the  trea- 
son-clause must  be  their  law,  bearing  solely  on  their  citizens  —  that  is 
to  say,  on  all  the  citizens  of  the  states  that  associated  themselves.  It 
reads  thus  :  "Treason  against  the  united  states  [not  "the  nation"  — 
not  "the  people"  — not  "the  government"]  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies,  giving  them 
aid  and  comfort."  Mr.  Curtis,  the  "Massachusetts  school's"  "histo- 
rian of  the  constitution,"  says  this  clause  was  designed  "to  defend  the 
supremacy  of  the  national  government"  i.  e.  the  sovereignty  thereof. 
But  the  said  government  is  not  mentioned ;  and  when  Mr.  Curtis 
shows  that  "the  government  of"  the  united  states  is  the  united  states 
themselves,  it  can  be  proved,  by  the  same  logic,  that  the  horse  of 
Mr.  Curtis  is  Mr.  Curtis  himself.  Besides,  it  is  very  singular,  if  the 
plural  pronouns  "  them "  and  "  their "  stand  for  government  —  a 
singular  word  not  in  the  sentence  —  instead  of  "  states,"  which  is 


414  CITIZENSHIP,   ALLEGIANCE,  AND  TREASON. 

their  plural  antecedent.  In  truth,  the  only  purpose  of  the  clause  is  to 
compel  citizens  to  obey  the  will  or  law  of  their  respective  states,  as 
expressed  in  the  federal  compact ;  and  to  be  true  to  the  said  states 
singly  and  collectively.  And  it  is  obvious  that  refusal  to  obey  is 
disobedience  to  the  state,  and  that  warlike  resistance  is  treason  to  the 
state,  for  which  offence  the  state  necessarily  has  the  original  right  to 
punish ;  the  right  of  the  federal  government  to  do  so  being  merely 
delegative  and  derivative  from  the  states. 

We  see,  then,  that  the  federal  compact  itself  positively  proves,  in 
the  citizenship  and  treason  clauses,  that  the  only  object  of  allegiance 
and  treason  is  this  sovereign  society  of  people,  called  the  state.  Our 
only  monarch  for  allegiance  is  society,  or  the  organized  people ;  and 
our  only  tie,  answering  to  the  allegiance  of  political  science,  is  the 
social  compact.  Republican  allegiance  must  involve  fidelity  to  society 
in  return  for  society's  protection  ;  and  treason  must  be  a  violation  of 
this  allegiance.  And,  accordingly,  the  state  constitution  provides  for 
treason  against  the  state  per  se,  and  the  federal  one  for  treason  against 
her  and  her  chosen  associates,  both  laws  being  her  will  and  voice ; 
and  both  being  evidenced  by  acts  of  conventions,  representing  the  sove- 
reignty of  the  state,  and  deriving  all  their  life  and  force  therefrom. 
The  key-note  of  all  the  acts  of  the  states  and  the  utterances  of  the 
fathers  is  that  "  the  sovereign  authority  of  the  state  is  the  palladium  of 
the  private  and  personal  rights  of  the  citizens "  [Samuel  Adams] ; 
there  being  no  people  but  states,  no  state  but  citizens,  and  no  sem- 
blance of  a  nation  that  is  not  composed  of  the  very  states  whi< 
agreed,  in  specified  matters,  to  govern  themselves  together,  and  made 
all  federal  institutions  to  protect  themselves,  and,  ipso  facto,  their 
citizens,  as  the  sacred  records  of  our  country  all  conclusively  show. 

The  federal  instrument  itself  proves  this  view,  not  only,  1st, 
iu  asserting  treason  against  the  several  individuals  associated,  to 
be  "  levying  war  against  them,  or  in  adhering  to  their  enemies  " ;  but 
2d,  in  declaring  all  the  people  to  be  members  and  "citizens  of 
different  states,"  and  providing  for  them  as  such.  This  is  really  the 
end  of  argument,  for  treason  in  a  republic  must  be  a  crime  against 
the  commonwealth,  which  the  one  charged  is  bound  to  obey.  As  to 
the  general  government,  it  must  be  subject  to  its  creators;  and  all  its 
powers  must  be  derived  from  them.  It  has  no  inherent  vitality  and 
strength  —  no  original  authority  —  nothing  that  is  underived  —  noth- 
ing that  is  not  subject.  Hence,  not  it,  but  the  original  and  creative 
power  above  it,  must  be  the  object  of  treason. 

Yes,  it  is  the  republics  or  people-governments  themselves,  and  not 
their  mere  artificial  and  governmental  institutions,  endowed  with 
trusted  authority  only,  that  define  and  denounce  "  treason  against  the 


ALL  TREASON  IS  AGAINST  THE  STATE.  415 

united  states,"  and  delegate  the  power,  and  appoint  the  functionaries, 
to  punish.  And  each  state  laid  her  law  upon  her  own  subjects,  as  is 
absolutely  proved  in  Part  II.  So  we  find  it  beyond  question  that 
federal  jurisdiction  in  any  given  state,  and  the  legal  force  of  the 
treason-clause  on  her  citizens,  flow  from  her  sovereignty  alone. 

Inter-state  Faith  is  the  Sole  Basis.  —  As  the  states  were  pre- 
existent  moral  persons,  had  minds,  and  came  together  through  mental 
action,  they  are  necessarily  in  a  voluntary  union ;  and  are  bound  in 
association,  and  moved  to  their  societal  duty  by  plighted  faith. 
Each  promises  that,  in  certain  matters,  her  subjects  shall  obey  the 
will  of  all ;  and  she  "lays  the  law,"  i.  e.  the  federal  compact,  on  them 
to  that  effect ;  delegating  to  the  association  the  power  to  try  and 
punish  federal  treason,  which  is  hostile  opposition  to  the  federal  will, 
which  will  she  has  pledged  her  faith  her  subjects  shall  obey.  In 
truth,  everything  federal  is  based  on  this  faith,  which  is  more  than 
knightly  or  royal,  it  being  the  faith  of  all  the  people  both  in  their 
individual  and  collective  capacity.  This  faith  pervades  —  nay,  it  is 
the  be-all  and  the  end-all  of  the  constitution  —  its  most  important 
expression  being  the  guaranty  of  all  the  states  to  each  that  she  shall 
be  and  act  as  a  republic  or  self-governing  people.  [Art.  IV.  §  4.] 

It  is  beyond  controversy,  then,  that  treason  against  the  united 
states  is  a  violation  of  allegiance  to  the  state,  in  disobeying  and  fight- 
ing against  her  authority  in  the  federal  constitution ;  and  that  she 
has  defined  it  in  her  said  supreme  law,  and  delegated  jurisdiction  to 
her  agency  —  the  federal  government  —  to  try  the  offender  and  pun- 
ish him.  This  becomes  clear,  when  we  reflect  that  the  state  could 
have  declined  to  delegate,  and  could  have  "  reserved  "  to  herself  the 
power  to  punish  treason  against  the  united  states,  just  as  she  could 
have  done  in  respect  to  any  other  power.  Indeed,  she  might  have 
reserved  half  the  powers  she  delegated  in  the  compact,  and  still  have 
had  as  extensive  an  instrument  as  was  the  first  "federal  constitu- 
tion"—that  of  1778. 

Now,  let  us  apply,  and  at  the  same  time  illustrate,  the  above  prin- 
ciples, by  showing  the  testimony  and  the  functional  action  of  the  two 
most  important  of  the  original  states. 

Let  us  first  see  the  case  of  Virginia.  —  In  providing  for  self-pres- 
ervation, and  also  self-government,  in  matters  common  to  her  and  her 
sister  states,  Virginia  held  her  convention  of  her  own*  motion,  and  in 
her  own  time  and  place,  and  declared  her  sovereign  will  as  follows : 
"  We  ...  in  convention,  ...  in  the  name  and  behalf  of  ...  Virginia, 
do  ...  ratify  the  constitution,  .  .  .  hereby  announcing  .  .  .  that  the 
said  constitution  is  binding  on  the  said  people,  according  to  an  authen- 
tic copy  hereto  annexed,  in  the  words  following,"  &c.  In  her  then 


416  CITIZENSHIP,  ALLEGIANCE,   AND  TREASON. 

existing  and  solemnly  established  character  as  a  "free,  sovereign, 
and  independent  state,"  she  then  and  there  completed  her  ratify- 
ing, ordaining  and  establishing  of  the  constitution,  and,  ipso  facto, 
her  union  with  the  other  states.  In  every  possible  respect,  she  was 
Virginia  after  the  establishment,  and  was  under  obligations  of  faith  to 
act  as  such  in  the  union.  She  was  named  in  article  I.,  with  her 
statehood,  faculties,  and  sovereignty  intact.  Said  Chancellor  Pendle- 
ton,  the  president  of  the  ratifying  convention,  —  no  one  dissenting,— 
"  Our  purpose  is  to  be  intimately  connected  with  the  other  twelve 
states ;  to  establish  one  common  government,  and  bind  in  one  liga- 
ment the  strength  of  thirteen  states."  It  is  impossible  to  suppose 
she  did  not  survive  ratification,  or  that  she  was,  with  the  other  twelve, 
consolidated  into  one.  No  record  shows  any  nationalizing  process, 
but  all  the  evidence  is  that  such  an  idea  was  emphatically  repudiated. 
[See  Part  III.,  chapter  VII.] 

So  we  see  that  "  sovereign,  free,  and  independent "  Virginia,  as  she 
and  all  her  sisters  declared  her  to.be,  did,  by  her  sovereign  power, 
subject  her  citizens  to  her  supreme  law  —  the  federal  constitution,  or, 
in  other  words,  "  laid  the  law  on  "  her  people  —  to  use  the  apt  expres- 
sion of  Rufus  King.  They  still  remained  her  citizens,  and  were  rec- 
ognized as  such  by  clauses  interwoven,  in  the  federal  constitution, 
with  the  very  treason-article  which  was  invoked  to  punish  the  said 
citizens  for  obeying  her  call  to  arms,  e.  g. :  "  The  citizens  of  each  state 
shall  be  entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  states."  [Article  IV.  §  2.]  "  The  judicial  power  of  the  united 
states  shall  extend  ...  to  controversies  between  citizens  of  differ- 
ent states ;  between  citizens  of  the  same  state"  &c.  [Art.  III.  §  2  ;  see 
also  Amendment  XL]  No  citizen  of  a  nation  was  ever  recognized,  or 
provided  for.  States,  as  complete  and  sovereign  political  bodies,  ex- 
isted before  the  federal  agreement.  Each  state  was  composed  of  its 
citizens  originally,  and  it  has  ever  continued  to  be  so.  These  "citizens 
of  different  states  "  were  the  only  people  in  the  land  possessed  of 
civil  and  political  rights.  Their  citizenship  or  allegiance  has  never 
been  changed.  No  hint  of  transfer  can  be  produced. 

The  Transfer  of  Allegiance  a  Gross  Absurdity.  —  How  absurd 
is  the  new  idea  taught  by  the  "  school,"  that  the  state,  in  passing  the 
ordinance  ratifying  the  federal  constitution,  and  commanding  the  obe- 
dience of  her  nlembers  to  the  federal  government  then,  ipso  facto, 
formed,  alienated,  in  that  act  and  moment,  the  said  citizens,  and 
discharged  them  from  duty  to  herself.  To  do  so  was  to  defeat  her 
own  purpose ;  for  her  authority  over  her  citizens  was  necessary  to 
secure  or  coerce  their  obedience  to  her  new  political  arrangement  and 
"  supreme  law."  Not  only  so,  but  such  transfer  of  allegiance  would 


ALL  TREASON  IS  AGAINST  THE  STATE.  417 

have  been  a  virtual  dissolution  of  the  state  (the  tie  of  allegiance,  as 
has  been  shown,  being  the  social  compact),  and  the  formation  of  a 
consolidated  and  homogeneous  commonwealth,  comprising  all  the 
states,  —  the  very  thing  the  fathers  dreaded,  and  sought  to  avoid,  as 
all  the  records  show. 

The  notion  of  a  transfer  of  allegiance,  like  that  of  a  delegation  of 
sovereignty,  is  an  utter  absurdity.  Either  is  state  suicide,  which  no 
presumption  favors,  and  which  the  records  of  the  country  entirely 
disprove.  Delegating  sovereignty  (including  the  transfer  of  the  citi- 
zens to  a  representative  government)  would  be  as  manifest  a  solecism 
as  delegating  ownership  to  an  agent.  As  in  the  latter  case  the  agent 
becomes  owner,  so  in  the  former  the  representative  becomes  sover- 
eign —  both  cases  being  alienations  or  abdications  unknown  to  legal 
or  constitutional  history. 

Consistently  with  the  above,  we  find  no  change  in  the  states  hinted 
at  in  the  federating  instrument,  but  them  named  and  provided  for 
as  pre-existent  entities  —  moral  persons. 

Secondly,  let  Massachusetts  testify.  —  Here,  as  usual,  she  steps 
forward  as  the  champion  of  statehood.  As  a  free,  sovereign,  and 
independent  commonwealth,  she  put  her  mind  deliberately  to  the 
subject,  and,  through  her  convention,  she  approved  and  adopted  the 
federal  constitution,  declaring  as  follows,  February  7,  1788:  "The 
convention  .  .  .  do,  in  the  name  and  behalf  of  the  people  of  the  com- 
monwealth of  Massachusetts,  assent  to  and  ratify  the  said  constitution 
for  the  united  states  of  America." 

Her  self-assertion  then  stood,  as  it  has  ever  since  done,  as  follows : 
She  declares  her  citizens  to  be  formed  into  the  state  by  the  social 
compact,  wherein  each  is  bound  to  be  governed  in  all  things  by  the 
voice  of  the  said  state.  Her  declaration  is  quoted  only  a  few  pages 
back,  and  it  is  hers  to-day,  [p.  410,  supraJ\ 

She  declares  that  the  commonwealth  so  formed  is  absolutely  sove- 
reign. Here  are  her  queenly  —  nay,  imperial  words,  sounding  to-day; 
"  The  people  of  this  commonwealth  have  the  sole  and  exclusive  right 
of  governing  themselves,  as  a  free,  sovereign,  and  independent  state  ; 
and  do,  and  forever  hereafter  shall,  exercise  and  enjoy  every  power, 
jurisdiction,  and  right,  which  is  not,  or  may  not  hereafter  be,  by  them 
expressly  delegated  to  the  united  states,  in  congress  assembled." 
"  Government  is  instituted  for  the  protection  .  .  .  and  happiness  of 
the  people.  .  .  .  Therefore,  they  alone  have  an  incontestable,  un- 
alienable  and  indefeasible  right  to  institute  government,  and  to  re- 
form, alter,  or  totally  change  the  same,  when  their  protection  .  .  . 
and  happiness  require  it."  [Const.  Mass.  Part  I.  articles  4,  7.] 

She  declares  every  power,  vested  by  her  in  the  united  states,  to  be 

27 


418  CITIZENSHIP,   ALLEGIANCE,   AND   TREASON. 

"delegated;"  and  all  officials  to  be  mere  " substitutes  and  agents"  of 
the  people.     [Ibid.  Part.  I.  articles  4,  5.] 

She  declares  her  people  to  be  her  citizens,  and  calls  them  "  subjects 
of  this  commonwealth"  [Ibid.  Part  I.  art.  11];  while  the  federal  pact 
corroborates  it,  by  calling  all  the  people  of  the  country  "  citizens  of 
different  states" 

She  commands  her  governor  to  assemble  all  her  "  citizens  "  and 
"  subjects,"  or  rather  "  inhabitants  "  —  this  being  the  word  she  uses 
—  to  "  repel "  "  by  force  of  arms,"  and  to  kill,  slay,  and  destroy  all 
such  persons  as  shall  "  attempt "  "  the  destruction,  invasion,  detriment, 
or  annoyance  of  this  commonwealth."  She  makes  no  exception  of, 
but  includes,  the  federal  government,  as  I  have  heretofore  shown. 
[Ibid.  Part  II.,  ch  2.] 

She  requires,  in  her  constitution  and  laws,  that  every  officer  shall 
take  an  oath  of  allegiance  to  her  as  a  sovereign.  Up  to  1820,  the 
oath  was  in  the  extended  form  given  heretofore.  In  that  year  it  was 
shortened,  but  not  weakened,  to  read  as  follows  :  "  I.  A.  B.,  do  solemnly 
swear  that  I  will  bear  true  faith  and  allegiance  to  the  common- 
wealth of  Massachusetts,  and  will  support  the  constitution  thereof: 
so  help  me  God."  [Amendments  1820,  art.  6;  see  also  her  law  and 
oath  of  I860,  referred  to  supra,  407.] 

She  declares,  under  the  heading  of  "offences  against  the  sove- 
reignty of  this  commonwealth,"  that  "treason,"  in  one  of  her  "  citizens" 
or  "  subjects,"  "  shall  consist  only  in  levying  war  against  her,  or  in 
adhering  to  her  enemies,  giving  them  aid  and  comfort."  [R.  .S.  of 
Mass.,  ed.  1836,  p.  715.]  To  aid  any  person  or  authority,  whether 
federal  or  other,  to  coerce  her  with  arms,  would  constitute  the 
crime. 

And  finally  she  declares,  that  "  every  person  who  shall  commit  the 
crime  of  treason  against  her  shall  suffer  death."  [Ibid.]  And  if  on 
any  one  of  several  occasions  —  and  especially  the  one  occurring  in 
1814  —  the  federal  government  had  pushed  the  dispute  with  Massa- 
chusetts to  an  issue  of  arms,  she  would  rightfully  have  executed  any 
subject  of  hers  who  had  dared  to  fight  for  the  said  agency,  against 
his  commonwealth  and  sovereign  ! 

Vermont  and  Kentucky  add  Conclusive  Proof.  —  These  two  states 
make  the  correctness  of  the  foregoing  completely  manifest.  They 
show  the  understanding  that  morally  binds  all  the  states,  the  people, 
and  the  general  government,  to  the  proposition  that  the  allegiance  of 
the  citizen  is  due  alone  to  his  state,  and  that  hence  the  only  possible 
treason  is  a  crime  against  the  original  sovereign  —  the  commonwealth  of 
people ;  the  law  of  treason  being  their  will,  and  the  trying  and  pun- 
ishing functionaries  being  their  instruments. 


ALL  TREASON  IS  AGAINST  THE   STATE.  419 

Vermont  and  Kentucky  were  the  first  states  to  join  the  federal 
union  after  it  was  first  formed,  the  former  in  1791,  and  the  latter  in 
1792;  and  their  cases  became  designed,  studied,  and  most  conspicu- 
ous precedents,  especially  on  the  vital  subjects  of  allegiance  and 
treason. 

Let  us  first  take  the  case  of  Vermont.  —  She  "  laid  the  law  on  " 
her  people,  through  her  convention,  on  January  10,  1791,  as  follows  : 
'  This  convention  ...  do  ...  approve  of,  assent  to,  and  ratify 
the  said  constitution ;  and  declare  that  the  same  shall  be  binding  on 
us  and  the  people  of  the  state  of  Vermont  for  ever."  [I.  Ell.  Deb. 
338.] 

Two  years  after  this,  supposing  herself  to  be  like  her  sisters,  a 
"free,  sovereign,  and  independent  state,"  she  formed  her  state  con- 
stitution, aiming,  of  course,  to  harm6nize  it  with  her  federalized  condi- 
tion. Therein  she  prescribes  the  following  "  oath  of  allegiance  to  this 
state"  as  she  calls  it,  to  be  taken  by  all  her  officers :  "  You  do 
solemnly  swear  that  you  will  be  true  and  faithful  to  the  state  of  Ver- 
mont." 

This  constitution,  lately,  if  not  now,  extant,  contains  the  following 
remarkable  provision  :  "  Every  person  of  good  character,  who  comes 
to  settle  in  this  state,  having  first  taken  an  oath  of  allegiance,  may 
purchase  .  .  .  real  estate,  and  after  one  year's  residence  shall  be 
.  .  .  entitled  to  all  rights  of  a  natural  born  subject  of  this  state, 
except,"  &c. 

So  much  for  Vermont.     Next  let  us  note 

Kentucky's  view  of  Allegiance  and  Treason.  —  In  1792  she  held 
a  convention,  through  which  she  declared  her  will  to  be  a  state,  and 
to  become  a  member  of  the  union,  while  about  the  same  time  con- 
gress passed  an  act  admitting  her  —  both  acts  taking  effect,  ex  vi 
termini,  on  the  first  of  June,  1792. 

In  her  constitution,  adopted  17th  August,  1799,  and  lately,  if  not 
now,  extant,  is  the  following  official  oath  of  allegiance  :  I  do  solemnly 
swear,  that  /  will  be  faithful  and  true  to  the  commonwealth  of  Ken- 
tucky, as  long  as  I  continue  a  citizen  thereof. 

One  more  extract  from  the  record  of  this  county  or  province,  will 
suffice  :  "  Treason  against  the  commonwealth  shall  consist  only  in  levy- 
ing war  against  it,  or  in  adhering  to  its  enemies,  giving  them  aid  and 
comfort." 

We  are  now  enabled  plainly  to  see 

The  Early  Faith  on  this  Vital  Subject.  —  On  the  momentous  occa- 
sion of  admitting  the  first  of  the  long  line  of  new  states,  the  land  would 
have  resounded  with  objections  and  protests,  if  there  had  been  error 
on  these  vital  points  of  allegiance  and  treason,  but  there  was  none. 


420  CITIZENSHIP,  ALLEGIANCE,  AND  TREASON. 

These  new  states,  and  the  congress  of  states,  as  did  all  the  people, 
and  all  their  leaders  and  political  philosophers,  concurred  in  the  view 
that  there  were,  — 

1.  No  political  organizations  of  people  but  states. 

2.  No  political  rights  but  the  rights  of  states. 

3.  No  sovereignty  but  that  of  the  people  of  states. 

4.  No  citizens  but  citizens  of  states. 

5.  No  allegiance  but  allegiance  to  states. 

6.  And  no  treason  but  that  against  a  state. 


CHAPTEE  XI. 
ALL  TREASON  IS  AGAINST  THE  STATE  (CONTINUED). 

THE  above  conclusions  are  supported  by  all  the  facts  of  history ; 
by  all  the  utterances  of  the  fathers ;  and  by  all  the  provisions 
and  principles  of  the  constitution  itself.  The  fathers  who  planned, 
and  aided  to  establish,  the  federal  system,  whether  acting  as  delegates 
to  the  federal  or  the  state  conventions,  were  members,  citizens,  and 
subjects  of  the  commonwealths,  owing  allegiance  to,  and  bound  to  pre- 
serve, them.  Hence  these  builders  built  with  pre-existent  materials  — 
combined  indestructible  and  absolute  states  into  a  new  federal  polity. 
Nothing  was  created,  destroyed,  or  changed.  The  people,  as  states, 
exjerted  their  own  wills,  and  became  "united  states"  —  "essential 
component  parts"  of  the  "new  system"  (as  Hamilton  himself  de- 
clared), intending  to  exercise  government  themselves.  Obviously, 
treason  is  against  the  people  as  they  are  organized.  But  let  us  reason 
further  into  the  philosophy  of  the  matter. 

The  Crime  is  against  Society.  —  It  is  obvious  that  treason  is  not 
against  the  instituted  government;  but  is  against  society,  which  rules 
and  protects,  and  is  entitled  to  allegiance,  precisely  as  if  a  king.  The 
monarch  in  the  one  case,  and  society  in  the  other,  says :  "  I  am  the 
state ;  allegiance  is  due  me,  and  treason  is  against  me." 

If  not  so,  why  did  Webster  say :  "  Sovereignty  of  government  is 
unknown  in  North  America ;  .  .  .  the  people  alone  are  sovereign "  1 
[Speech  of  1833.]  If  not  so,  why  did  Madison  say  :  "Each  state  .  .  . 
is  considered  as  a  sovereign  body  .  .  .  only  to  be  bound  by  its  own 
voluntary  act "  [Fed.  39] ;  and  that  the  present  system  "  consists  of 
many  co-equal  sovereignties  "  1  [III.  Ell.  Deb.  381.]  If  not  so,  why  did 
the  Federalist,  speaking  the  views  of  Hamilton  and  Jay,  as  well  as 
Madison,  declare  that  "  the  federal  and  state  governments  are,  in  fact, 
but  different  agents  and  trustees  of  the  people,  instituted  with  different 
powers,  and  designated  for  different  purposes  "  ?  [Art.  46.]  And  why, 
finally,  if  it  be  not  so,  did  Mr.  G.  T.  Curtis  state,  as  the  American 
doctrine,  that  governments  with  us  are  only  "  agents  and  depositaries 
of  the  power  of  the  people'"?  [II.  Hist.  Const.  38.] 


422  CITIZENSHIP,  ALLEGIANCE,   AND  TREASON. 

Treason  is  against  the  state,  then,  not  only  according  to  the  con- 
stitution and  the  fathers,  but,  as  we  shall  see,  according  to  natural 
reason.  The  body  rules  and  protects,  and  is  entitled  to  reciprocal 
duty  and  devotion  [see  pream.  const.  Mass,  appendix  D].  Hence  we 
infer  that  true  loyalty  in  a  citizen  is  fidelity  to  his  state,  and  that 
treason  against  the  united  states  ceases  to  be  a  crime  when  the  alleged 
act  is  done  in  defending  one's  state,  or  when  she  disunites  herself. 

It  is  not  inconsistent  with  these  principles,  for  the  states,  acting 
under  the  jus  gentium,  to  force  a  seceder  to  come  back  to  the  same 
old  constitution,  with  all  its  provisions  and  principles  intact :  for  it 
provides  for  equal  and  self-governing  united  states.  And  if  truth, 
justice,  and  the  principles  of  institutional  liberty,  which  are  formu- 
lated in  the  constitution,  are  persistently  violated,  and  no  remedy  is 
found  therein,  a  state  ought  to  withdraw,  as  one  patriarchate  with- 
drew, with  God's  approval,  from  another,  to  avoid  strife.  [Gen.  xiii.] 
They,  like  our  states,  willed  to  be  together,  and  they  could  equally 
will  to  separate.  Of  course,  withdrawal  tenders  an  issue  under  the 
jus  gentium,  which  the  adhering  states  have  as  good  a  right  to  accept 
as  the  others  to  tender.  [See  Part  I.  ch.  iv.] 

Naturally  Disunion  ends  Federal  Treason.  —  Remembering  that 
the  power  of  repeal  is  precisely  commensurate  with,  and  the  exact  op- 
posite of,  the  power  to  enact  or  ordain ;  and  remembering  that  all  the 
powers  of  the  constitution  are  delegated  by  the  will  of  superior  au- 
thority, and  hence  withdrawable,  natural  reason  and  common  sense 
will  teach  us  that  the  crime  of  "treason  against  the  united  states" 
must  end,  as  to  a  citizen,  with  his  state's  withdrawal  from  the  associa- 
tion, and  recall  of  her  delegations. 

We  must  keep  it  in  mind  that  man  is  merged  and  politically  lost 
in  the  state,  and  becomes  subject  to  duty  to  and  protection  from  her, 
by  virtue  of  the  social  compact ;  as  well  as  an  integral  part  of  the 
said  state ;  and  in  his  societal  capacity  a  part  of  the  governing  author- 
ity. Politically,  he  is  nothing,  except  in  this  connection.  Moreover, 
the  state  is  named  in  the  federal  pact,  and  recognized  as  one  of  its  con- 
stituents, while  the  man  is  designated  as  her  citizen,  and  is  of  course, 
a  part  of  her.  As  such  part,  he  was  carried  by  her  into  the  union. 
She  organically  survived  the  completion  of  it,  abating  nothing  of  her 
sovereign  will.  Being  identical  with  said  citizens,  she  functionally 
commands  and  controls  them  in  all  matters,  including  those  of  the 
federal  instrument  —  this  being  her  "  law  laid  on  them,"  just  as  the 
state  constitution  is,  both  being  declared  by  her  convention. 

Citizens  had  no  agency  in  giving  life  or  validity  to  the  federal  com- 
pact, or  doing  anything  towards  it,  except  voting  for  delegates,  who, 
in  convention,  were  to  express  the  will  of  the  state  to  ratify,  and  thereby 


ALL  TREASON  IS  AGAINST  THE   STATE.     (CONTINUED.)     423 

ESTABLISH,  the  constitution,  as  provided  by  Article  VII.  [See  supra, 
153.] 

Unquestionably,  then,  the  treason  clause  comes  from  the  wills  of 
states ;  and  a  state  makes  or  unmakes  the  offence  at  will,  as  to  her 
own  members,  citizens,  and  subjects. 

Naturally  States  can  Undo  -what  they  Do.  —  No  change  having 
been  wrought  in  the  state  and  the  citizen  by  the  federal  constitution, 
the  former,  of  course,  remained  free,  and  the  union  voluntary.  Hence 
she  could  disunite  herself —  withdraw  her  delegations  —  and  recall  her 
federal  agents.  If  the  ordinance  of  ratification  is  a  functional  act  of 
mind,  an  exercise  of  will,  can  she  not  change  her  mind,  and  the  act  1 
If  she  made  up  her  mind  that  her  "  defence,"  "  welfare,"  and  "  the 
blessings  of  liberty,"  would  be.  "  promoted "  and  preserved  by  a 
given  —  say  a  federal  —  arrangement ;  and  her  experience  afterwards 
showed  that  her  purpose  failed,  that  injury  resulted,  and  that  danger 
impended ;  were  it  not  absurd  to  say  that  she  could  not  change  alike 
her  mind  and  her  means  1  Surely,  if  by  her  functional  action  this 
being  express  her  will  through  her  voters,  and  the  delegates  they 
elect,  to  disunite  herself  from  the  federal  union,  "  treason  against  the 
united  states,"  and  federal  jurisdiction  to  punish  it,  are  alike,  and  at 
the  same  moment,  brought  to  an  end.  This  may  be  called  secession, 
or  some  other  odious  name,  to  excite  popular  prejudice,  but  the  politi- 
cal philosophy  of  it  will  endure  forever.  Withdrawal  is  the  natural 
action  of  an  unchained  state  ;  there  is  no  constitutional  impediment ; 
and  the  recent  amendments  have  not  even  hinted  at  prohibition  ! 

Why  has  not  some  St.  George  slain  the  dragon  1  Why  has  seces- 
sion not  been  constitutionally  prohibited  1  I  will  conjecture  on  this 
ibject  hereafter. 

But  the  Matter  is  on  a  still  Higher  Plane.  —  It  involves,  indeed,  the 
highest  moral  considerations,  as  well  as  obedience  to  Heaven.  With- 
drawal is,  as  to  a  state,  the  natural  and  functional  act  of  a  free  being; 
and  it  is  a  moral  duty,  by  a  "  moral  person  "  —  a  society,  endowed  by 
Deity  with  existence,  and  with  the  instinct  and  right,  as  well  as  the 
duty,  of  self-preservation.  As  we  have  seen,  God  ordained  society 
when  He  made  man.  And  He  made  and  gave  mind  for  nothing,  if 
not  for  the  use  and  end  of  providing  for  the  "  welfare  "  and  "  defence  " 
of  the  body  that  contains  it.  And  naturally  society  or  societies  can 
do  or  undo  —  as  we  have  seen  —  whatever  their  "  defence  "  and  "  wel- 
fare "  demand.  And  their  free  moral  agency  necessitates  their  option ; 
for  it  would  be  absurd  if  a  sentient  being  which  Deity  had  made  or 
caused,  and  intended  to  hold,  in  a  manner,  finally  accountable,  had 
not  the  right,  and  was  not  in  duty  bound,  to  use  every  power  and 
faculty  in  self-preservation  ;  or  if  such  being  had  not  the  right  to 


424  CITIZENSHIP,  ALLEGIANCE,  AND  TREASON. 

provide  for  its  defence  and  welfare,  by  undoing  an  act  it  had  mistak- 
enly done  for  that  purpose,  and  which  threatened  its  harm  and 
destruction. 

And,  viewing  this  society,  not  merely  as  the  government  (which,  as 
a  republic,  it  is),  but  as  the  heaven-commissioned  custodian  and 
defender  —  the  citadel,  so  to  speak,  of  the  members  of  the  society, 
their  families,  and  their  "  blessings  of  liberty ;  "  duty  and  honor  would 
compel  it  to  destroy,  not  only  the  federal  government,  but  the  whole 
world  besides,  if  necessary  to  fulfil  its  sacred  trust. 

It  is  right  here  that  we  find  the  highest  application  in  all  the 
moral  and  physical  world,  of  the  great  truth  that  "  self-defence  is  the 
first  law  of  nature." 

The  Tie  that  binds  the  Citizen  to  Obey.  —  Plainly,  then,  the  tie  of 
allegiance  —  the  social  compact  —  binds  the  citizen  to  obey  the  state's 
federal  will  or  mandate,  and  makes  it  treason  for  him  to  fight  her  and 
her  united  sisters ;  and  plainly,  in  order  that  the  treason-clause  should 
apply  to  him,  her  act  or  ordinance  of  ratification  must  be  in  force, 
and  the  state  in  the  union. 

It  was  the  same  voice  —  the  same  law-making  power  that  laid  the 
treason-clause  on  the  member,  citizen,  and  subject  of  Virginia,  in 
1788,  and  that  annulled  it  in  1861.  On  the  former  occasion  it  said : 
"  Be  it  ordained  ;"  on  the  latter,  "  Be  it  repealed.''  The  citizen  that 
obeys  the  one  has  the  same  reason  for  obeying  the  other  viz.  that 
each  member  of  the  commonwealth  is  bound,  by  the  all-comprehend- 
ing obligation  of  the  social  compact,  to  obey  the  said  body.  There  is 
no  shade  of  original  and  ultimate  authority  over  citizens  outside  of 
this  body.  It  is  a  republic  or  self-governing  people  ;  and  "3ro  author- 
ity, on  any.  pretence  whatever"  can  "  be  exercised  over  the  people  or  mem- 
bers of  this  state,  but  such  as  shall  be  derived  from  or  granted  by  them." 
[Supra,  p.  62.]  This  standing  declaration  of  New  York  is  vital  to 
each  and  every  state  in  the  union.  It  is  self-government! 

The  federal  constitution  ends  the  subject  by  considering,  and 
providing  for,  all  the  people  as  <J  citizens  of  different  states,"  i.  e.  as 
members,  integers,  and  subjects.  And  the  federal  convention  of  1787 
unanimously  declared  the  "states"  to  be  "the  government"  —as, 
being  republics,  they  must  have  been  —  the  so-called  government 
being  their  agency.  [See  II.  Curtis's  Hist.  Const.  608.] 

In  conclusion  of  these  two  chapters,  then,  I  affirm  that  not  only  do 
history  and  philosophy  show,  but  that  the  federal  constitution  proves 
(and  is  strictly  consistent  with  the  idea),  that  the  state  is  the  sole 
object  of  treason.  Q.  E.  D. 


CHAPTEE  XII. 
CONCLUSION. 

WE  are  forced,  then,  to  stand  upon  the  law  of  our  political  being 
and  nature,  and  admit  that  our  whole  system  is  states,  and 
nothing  else ;  that  "  levying  war  against "  a  state's  enemies,  under 
her  command,  and  adhering  to  her,  giving  her  "  aid  and  comfort,"  is 
always  duty  and  not  treason ;  and  that  the  fathers  thought  that  every 
citizen  should  and  would,  upon  call  of  his  commonwealth,  rally  to 
her  flag,  as  against  any  other. 

And  this  is  what  Hamilton  meant  by  the  following,  which  was  the 
general  sentiment  of  that  day :  "  The  state  governments  will,  in  all 
possible  contingencies,  afford  complete  security  against  invasions  of 
the  public  liberty  by  national  authority.  In  a  confederacy,  the  people, 
without  exaggeration,  may  be  said  to  be  entirely  masters  of  their  own 
fate."  [Federalist,  28 ;  see  also  the  views  of  Ames  and  Parsons,  II. 
Ell.  Deb.  46,  94 ;  see  also  Part  V.  Ch.V.] 

Why  fight  Facts  ?  —  We  may  not  like  such  facts  and  philosophy. 
But  why  "  wreck  ourselves  against  necessity  ?"  [De  Stael.]  Why  — 
to  borrow  one  of  Carlyle's  singular  expressions  —  "  mash  our  face  to 
a  pancake  against  the  adamant  of  things  "  1  States  are  as  separate, 
solid,  and  enduring  as  island  rocks  in  the  ocean.  And  we  should 
cherish  and  defend  them  as  the  sacred  treasuries  of  all  our  blessings 
—  as  the  last  refuge  and  citadel  of  freedom.  Seward,  after  the  war, 
spoke  truly,  wisely,  and  well,  in  saying  :  "  This  absolute  existence  of 
the  states  which  constitute  the  republic,  is  the  most  palpable  of  all 
the  facts  which  the  American  statesman  'has  to  deal  with.  .  .  .  Our 
federal  republic  exists,  and  henceforth  and  forever  must  exist,  through 
.  .  .  the  combination  of  these  several,  free,  self-existing,  stubborn 
states.  .  .  .  They  are  living,  growing,  majestic  trees,  whose  roots  are 
widely  spread  and  interlaced  within  the  soil,  and  whose  shade  covers 
the  earth."  [Speech  at  Auburn,  October  20,  1865.] 

"  Indestructible  states  "  is  the  phrase  applied,  since  the  war,  to  our 
commonwealths  by  Chief  Justice  Chase  [State  of  Texas  vs.  White] ; 
and  it  is  a  truth.  Atoms  of  water  do  not  more  naturally  glomerate 
into  a  distinct  drop,  than  men  tend  to  form  society.  All  gather 


426  CITIZENSHIP,   ALLEGIANCE,  AND   TREASON. 

naturally  around  a  centre  of  collective  existence,  possess  a  corporate 
soul ;  and  in  that  form  become  conscious  of  the  instinct,  the  right, 
and  the  duty  of  self-preservation. 

And  free  states  gravitate,  like  free  men,  to  some  common  centre. 
Of  course,  it  is  where  the  ties  of  amity,  neighborly  good-will,  sym- 
pathy of  common  origin,  common  design,  and  common  expectations ; 
mutual  interest  and  confidence ;  and  a  well-founded  hope  of  inter- 
state justice  in  the  future ;  are  all  knotted  or  formulated  into  a  con- 
ventional arrangement  like  the  federal  (or  league-al  1)  constitution. 

Who  Saved  the  States  ?  —  In  our  four  years'  war  among  the  states, 
the  parties  were  compelled  to  recognize,  and  deal  with  one  another, 
as  belligerents ;  and  necessarily  their  voluntary  ties  of  union  were 
dissolved.  Some  judges  have  wished  otherwise,  and  so  decided ;  but 
assertions  do  not  make  facts. 

The  elements  of  the  states,  which  returned  to  the  union,  might 
have  been  melted  and  poured  into  unity  by  the  victors ;  but  Massa- 
chusetts, New  York,  Pennsylvania,  Ohio,  and  Illinois  only  desired  a 
union  of  states ;  and  they  saw  that  the  constraint  of  one  by  the  rest, 
in  peace,  would  be  to  themselves  a  most  dangerous  precedent ;  and 
they  had  Henry  Wilson,  John  A.  Andrew,  William  H.  Seward, 
Gerrit  Smith,  Thaddeus  Stevens,  Salmon  P.  Chase,  Benjamin  Wade, 
and  Lyman  Trumbull  —  to  say  nothing  of  others  —  watching  to  see 
that  the  respective  republics,  and  the  republic  of  republics,  should 
receive  no  detriment. 

The  aforesaid  states  and  statesmen  probably  influenced  the  shaping 
of  amendments  XIII.,  XIV.  and  XV.,  so  that,  while  the  results  of  the 
war  should  be  secured,  absolute  statehood  should  be  preserved. 
They  might  have  revolutionized  the  states  into  a  nation,  but  they 
preferred  the  system  to  remain  "  united  states." 

And  Civil  Rule  and  Legal  Coercion  yet  Stand.  —  These  amend- 
ments were  made  by  the  states,  according  to  Article  V.  of  the  compact, 
as  all  the  previous  ones  had  been.  The  original  instrument  was  left 
unchanged  and  unmodified ;  no  sentence  or  word  of  it  was  repealed, 
even  by  implication ;  and  the  civil  jurisdiction  of  the  federal  govern- 
ment was  simply  extended,  the  means  of  enforcement  remaining  the 
same.  Even  the  right  of  secession  was  not  prohibited  —  probably 
because  it  involved  a  vital  principle  of  freedom  ;  and  because  prohibit- 
ing it  would  have  been  precisely  equivalent  to  chaining  states. 

And  the  aforesaid  commonwealths  and  their  statesmen  did  not,  in 
their  measures  of  reconstruction,  profess  to  act  inside  of  the  constitu- 
tion. Thaddeus  Stevens  said  there  were  only  two  men  in  all  congress 
who  argued  that  those  measures  were  constitutional.  "  In  all  this 
business,"  said  he,  "  we  act  outside  of  the  constitution" 


CONCLUSION.  427 

Evasion  of  Jefferson  Davis's  Trial.  —  It  was  the  facts  and  principles 
herein  set  forth,  and  the  vital  importance  of  them  to  these  "stub- 
born," "  indestructible  states,"  that  caused  Seward,  Chase,  and  Presi- 
dent Johnson  to  evade  the  trial  of  Davis,  Lee,  and  the  other  con- 
federate chiefs,  while  pretending  to  desire  it.  Reason,  silent  in  war, 
longed  to  implead  "  the  government "  in  time  of  peace.  Justice 
would  have  vindicated  the  defendants  and  their  "lost  cause" — this 
being  the  cause  of  institutional  liberty  —  the  cause  of  the  American 
commonwealths. 

The  True  Sanction  of  the  Union.  —  The  coercive  use,  on  the  states, 
of  their  own  men  and  means,  by  their  own  citizens  and  subjects, 
whom  they  elect  as  agents,  cannot  be  the  cohesive  force  of  a  voluntary 
union  of  states.  Such  an  idea  would  be,  as  Madison  said,  "  visionary 
and  fallacious ; "  as  Hamilton  said,  "  the  maddest  project  ever  devised ; " 
and  as  Randolph  and  others  said,  "  war."  The  "  attraction  of  repul- 
sion," and  not  of  cohesion,  would  be  illustrated  by  such  a  plan.  No, 
the  people  collectively,  as  well  as  individually,  must  be  "attracted"  — 
to  use  the  expression  of  John  Quincy  Adams  in  1839  —  "  by 
the  magnetism  of  conciliated  interests  and  kindly  sympathies."  If 
they  be,  the  union  must  endure.  The  people,  collectively,  being  sove- 
reign bodies,  their  personal  fealty  is  to,  and  their  sympathy  with, 
themselves.  Nothing  more  august,  dignified,  potent,  or  heaven- 
approved,  can  exist  as  the  basis  and  sanction  of  a  union-government 
of  republics. 

The  real  bond  and  conserving  force  of  the  association  is,  as  it 
always  has  been,  the  plighted  faith  of  sovereigns,  resting  on  their  sat- 
isfaction and  sense  of  safety,  their  amity  and  neighborly  kindness 
and  their  mutual  interest. 

When,  and  by  what  act,  did  this  union  become  involuntary  —  a 
chained  union?  When  did  these  undeniable  original  feelings  and 
motives  change  1 

Sacred  Inter-State  Faith  is  the  Only  Basis.  —  Webster  could  but 
say  in  1819  :  "  The  only  parties  "  to  it,  "  originally,"  "  were  the  thirteen 
confederated  states ; "  and  it  rests  solely  "  on  compact  and  plighted 
faith."  And  this  could  but  be,  as  it  really  was,  Webster's  dying  view. 
[See  App.  F.;  also  supra,  pp.  207  —  211.] 

Hold  Sacred  the  Muniments  of  Liberty.  —  The  highest  use  of 
constitutions  and  laws  is  to  protect  "  the  blessings  of  liberty  "  against 
rulers.  The  world's  history  is  mainly  devoted  to  recounting  the 
efforts  of  the  few,  by  fraud  and  force,  to  control  and  tax  the  many  ; 
and  our  fathers  aimed  to  forefend  the  danger,  by  giving  to  the  said 
rulers  only  written  authority,  specially  empowering,  directing,  and 
controlling  them,and  precluding  discretion,  particularly  in  the  federal 


428  CITIZENSHIP,  ALLEGIANCE,  AND   TREASON. 

agency,  as  to  which  no  power  is  valid  unless  expressed  —  all  not 
expressed  being  retained.  The  terms,  and  truths,  and  principles  are 
the  very  walls  of  our  fort,  and  any  giving  up  or  compromise  of  a  pro- 
vision, a  principle,  or  a  truth,  which  forms  a  part,  is  in  the  nature  of 
treason  as  well  as  perjury. 

The  only  safety  of  the  people's  blessings  of  liberty  is  the  sacred- 
ness  of  constitutions.  In  the  olden  time,  this  sentiment  was  all-per- 
vading, like  the  atmosphere.  "  The  inviolate  sanctity  of  a  written 
constitution,"  said  Hamilton,  is  "  the  life  of  a  republican  government." 
Many  similar  expressions  could  be  quoted  from  Washington,  Jefferson, 
Jackson,  and  others. 

Our  most  dangerous  perverters  are  federal  functionaries,  who 
readily  swear  to  do,  and  not  to  do,  as  the  procuration  directs,  but  soon 
ignore  their  solemn  adjuration,  and  forget  that  —  as  Webster  says  — 
"  the  constitution,  to  preserve  itself,  lays  its  hand  on  individual  duty 
and  conscience ; "  and  who  claim  and  exercise  all  the  power  they  wish 
for,  and  suppose  to  be  popular,  whether  warranted  by  the  compact  or 
not. 

At  all  times  and  in  every  possible  form,  they  assert  that  "  we  are  a 
nation,"  assuming  every  point  needed  to  make  up  that  theory.  "  Of 
the  making  of  books  "  to  establish  it  without  proof,  "  there  is  no  end  " 
—  the  evident  aim  being  to  assert  the  states  out  of,  and  a  nation  into, 
existence.  Even  the  federal  supreme  court  have  asserted  —  contrary 
to  all  history  —  that  a  change  was  made  from  a  union  of  states  to 
another  system  [9  Wheaton,  1],  and  that  the  federal  government 
(including  said  court)  is  sovereign  —  with  coercive  power,  of  course  — 
over  the  very  states  that  are  the  real  government,  and  that  established 
the  federal  governmental  agency,  of  which  the  federal  supreme  court  is 
a  part  [2  Otto,  542].  How  can  the  temple  endure,  if  its  very  high- 
priests  undermine  it  *? 

Title  by  Assertion.  —  If  such  things  can  be  done,  why  not  bring 
into  political  and  legal  science  a  new  title  to  authority  —  the  title  by 
assertion  ?  Why  not  acquire  property  in  the  same  way  ?  And  why, 
since  we  can  alter  the  constitution  by  assertion,  should  we  trouble 
ourselves  hereafter  with  that  clumsy  contrivance,  Article  V.  1 

Why  continue  to  punish  as  crime,  when  done  to  property,  that 
which  rulers  do  as  to  authority1?  In  what  is  the  perjured  thief  of 
"  powers,"  better  than  the  starving  stealer  of  a  loaf? 

Anathema.  —  A  constitution  is  a  rule  of  faith  and  practice,  as 
essential  to  the  temporal  welfare  as  the  Bible  is  to  the  eternal.  The 
curse  which  the  latter  denounces  against  heretical  teachings  should 
be  hurled  against  those  who  pervert  our  sacred  fundamental  laws : 
"  If  any  man  teach  any  other  gospel  [or  constitution]  to  you,  let  him 
be  accursed." 


CONCLUSION.  429 

Let  us  Acknowledge  our  Sovereigns.  —  If  the  words,  figures,  and 
meanings  of  the  federal  pact  are  unchanged,  and  if  the  amendments 
have  in  no  wise  varied  the  plan  of  our  polity,  or  reduced  the  grade 
of  the  republics,  why  not  henceforth  recognize  our  allegiance  to  our 
commonwealths ;  implicitly  obey  their  home  and  their  federal  com- 
mands ;  and  render  constant  faith  and  undying  devotion  to  their  in- 
tegrity, honor,  dignity,  and  sovereign  will  ? 

The  Palladium  of  all  our  Blessings. — Concentred  in,  and  based 
on,  the  commonwealth,  will  be  found  all  there  is  of  patriotism,  of  col- 
lective character,  of  public  opinion,  and  of  moral  force  in  government, 
as  well  as  voting  power.  The  republic  is  founded  on  the  human 
heart.  Its  institutions  are  shaped  by  man  to  his  own  liking  ;  are  in- 
tended solely  for  his  good ;  and  are  nothing  but  defences  of  his  "  bless- 
ings of  liberty."  An  expression  of  Massachusetts,  in  January,  1776, 
is  one  of  her  glories  now  :  "  As  the  happiness  of  the  people  is  the  sole 
end  of  government,  so  the  consent  [i.  e.  the  will]  is  the  only  foundation 
of  it,  in  the  reason,  morality,  and  natural  fitness  of  things."  In  one's 
home,  family,  kindred,  friends,  neighbors,  and  fellow-citizens,  and 
their  belongings,  and  in  the  institutions  that  surround,  bind  together, 
and  protect  them,  is  found  the  personal  happiness,  which  is  the  great 
object  of  life,  and  the  sole  purpose  of  instituting  government.  These 
institutions  are  the  vital  defences  of  home,  and  hearth,  and  heart. 
The  love  of  them  is  the  cement  and  coherence  of  the  state  —  that 
repository  of  all  blessings,  and  citadel  and  last  refuge  of  freedom. 
The  federal  system  is  the  outer  wall,  or  bulwark,  to  protect  states  — 
"a  dyke,"  to  use  Fisher  Ames's  figure  —  "to  keep  out  the  destroying 
flood." 

The  people  have  chosen  to  be  states,  and  why  should  they  be 
undone  1  During  one  hundred  years,  these  heaven-devised  societies 
—  take  for  instance  Massachusetts,  New  York,  Virginia,  and  Geor- 
gia —  have  exemplified  and  vindicated  the  capacity  of  man  for  self- 
government  ;  each,  as  a  complete  republic,  achieving  a  distinguished, 
a  brilliant  success.  Each  knew  and  felt  that  her  "  sovereignty  was," 
as  Samuel  Adams  said,  "  the  palladium  of  the  private  and  personal 
rights  of  the  citizen."  Why  should  the  monster,  centralism,  be 
allowed  to  destroy  these  precious  entities  1 

The  rightful  central  power  is  that  which  the  commonwealths,  for 
agential  purposes,  have  established,  the  forces  of  which  spring  from, 
and  are  adjusted  to,  their  own  autonomy.  The  central  sun  of  their 
system  is  their  creation,  and  it  draws  its  only  light  and  heat  from 
their  inherent  stores.  Nothing  of  that  central  authority  is  original, 
or  its  own.  And  if  even  the  "  Bird  of  the  broad  and  sweeping  wing, 
whose  home  is  high  in  heaven,"  were  to  be  deprived,  in  mid-air,  of  all 


430  CITIZENSHIP,   ALLEGIANCE,  AND  TREASON. 

strength  but  his  own,  his  further  history  would  be  short,  ignominious, 
and  as  follows :  "  tumbled,  smashed,  rotted  !  " 

Plain  Common  Sense  as  to  Union.  —  There  is  a  naturalness  of  rea- 
son and  sense,  which  should  influence  our  minds  on  this  great  subject. 
It  is  found  exemplified  in  the  thought  and  conduct  of  business  men  as 
to  business  affairs,  Man  —  the  object  of  all  politics  and  all  law  —  ever 
tends  to  society,  and  seeks  therein  self-interest,  safety,  friendship,  mu- 
tuality, justice  and  righteousness.  Societies  desire  and  tend  to  federate 
with  precisely  the  same  motives  and  ends.  Why  should  we  not  deal 
with  unions,  constitutions  of  government,  and  the  administration  of 
such  affairs,  just  as  matters  of  arrangement  and  transaction  are  dealt 
with  in  business  circles  ;  being,  of  course,  deliberate,  and  duly  guided 
by  political  science,  ethics,  law  and  equity  1  Business  men  in  legiti- 
mate transactions  have  precisely  the  above  motives.  That  great  man, 
John  Quincy  Adams,  foresaw  that  "terms  of  union,"  or  "articles  of 
union" — as  the  convention  of  1787  called  them  —  being  of  human 
origin,  must  require  change ;  and  he  inculcated  preservation  of  amity 
among  the  peoples,  as  well  as  a  desire  to  associate,  and  a  willingness 
to  be  mutual  and  just;  so  that  when  a  given  union  should  fail  to 
answer  its  ends,  they  would  be  minded  to  recur  to  precedents,  and 
"  form  a  more  perfect  union."  Three  unions  of  all  the  states  have 
been  made;  and  several  more  are  possible.  And  it  would  be  alike 
foolish,  flagitious,  and  futile,  to  trammel  the  authority,  the  material 
interests,  and  the  heartfelt  sentiments  of  the  peoples,  with  changeless 
forms  —  forms  that  might  be  blessings,  A.  D.  1880,  but  curses  after- 
wards. Though  beneficent  originally,  they  may  be  "  perverted  from 
their  purposes,"  and  become  destructive  of  liberty  and  the  people's 
rights. 

Man  — the  Sole  Object  of  Institutions.  —  The  state  contains  all 
there  is  of  republicanism  in  the  land.  Politically  man  is  merged  and 
lost  therein.  He  finds  and  enjoys  there  all  his  "  blessings  of  liberty"  ; 
and,  if  he  is  safe  "under  his  own  vine  and  fig-tree,"  he  little  cares 
whether  the  state,  or  the  association  of  states,  is  large  or  small.  And 
the  state  herself,  if  safe,  is  as  happy  united  with  four,  as  with  forty, 
peers.  Witness  Delaware,  and  Rhode  Island,  and  the  original  thirteen, 
with  their  3,000,000  of  people.  Size  is  not  bliss,  and  nought  of  time 
is  above  change.  Ages  ago  there  existed  between  the  orbits  of  Mars 
and  Jupiter  a  primary  planet  which  was  shattered ;  but  the  fragments 
yet  shine  in  their  paths  of  glory,  adding  their  smaller  voices  to  the 
harmony  of  the  spheres ;  and  they  are  still  as  capable  of  working  out 
the  design  of  the  great  Creator,  and  promoting  the  happiness  of  their 
inhabitants,  as  they  would  be  if  they  remained  the  original  unity  pro- 
jected from  His  Almighty  Hand  ! 


CONCLUSION.  431 

Yes,  the  sole  object  of  institutions  is  the  happiness  of  man  ;  and  we 
should  preserve  these  safeguards  of  his  blessings  of  liberty  in,  or,  if 
needs  be,  out  of,  the  union.  The  greatest  of  our  dangers  are  our  rulers 
and  politicians.  Their  perversions  and  excesses,  if  continued,  will 
sooner  or  later  destroy  American  institutional  freedom.  The  warning 
of  Burke  is  the  Alpha  and  Omega  of  my  book.  Would  that  it  were 
engraved  on  every  American  hearth-stone,  and  impressed  on  every 
American  heart :  "This  change  from  an  immediate  state  of  procu- 
ration and  delegation  to  a  course  of  acting  as  from  original  power, 
is  the  way  in  which  all  the  popular  magistracies  of  the  world  have 
been  perverted  from  their  purposes ! " 


APPENDIX   A. 


No  1. 
THE   UNION   OF   STATES. 

EXTRACTS  FROM  CONTEMPORANEOUS  JOURNALS  AND  MAGAZINES  TO  SHOW 
HOW  THE  ADVOCATES  PRESENTED  THE  UNION  OF  STATES,  AND  WHAT 
THE  PEOPLE  MUST  HAVE  THOUGHT  IT  WAS,  AND  INTENDED  IT  TO  BE. 

Extracts  from  the  Massachusetts  Centinel,  from  Oct.  3,  1787,  to  Nov.  19,  1787. 

FOR  many  years  I  have  gathered  extracts  from  editorials,  communications, 
political  essays,  speeches,  state  papers,  and  acts  of  the  American  common- 
wealths, contemporaneous  with,  and  referring  to,  the  forming  of  our  associa- 
tion of  states,  with  a  view  of  reproducing  for  the  sons  the  ideas  and  impressions 
that  actuated  the  sires  in  forming  our  federal  institutions. 

The  contending  theories  as  to  the  character  of  our  union  are  as  follows  : 

1.  That  of  the  Massachusetts  school  —  thus  set  forth  by  Webster:  "The 
union  ...  is  the  association  of  the  people,  under  a  constitution  of  govern- 
ment ;  .  .  .  therein  they  establish  a  distribution  of  their  powers  between  this 
their  general  government,  and  their  several  state  governments."     So  far  as  this 
nation  has  thus  expressed  its  will,  "  so  far  state  sovereignty  is  effectually  con- 
trolled."    The  Philadelphia  convention  of  1866  improved  on  this,  by  saying 
that  "the  government"  has  "absolute  supremacy,"  and  rightfully  holds  "the 
states  in  allegiance." 

2.  In  opposition  to  the  above  theory  of  "the  Massachusetts  school,"  the 
constitution  itself  repeatedly  characterizes  the  polity  it  provides  for  as  a  union 
of  states  —  "the  united  states" — the  instrument  calling  itself  "the  constitu- 
tion of  [».  e.  belonging  to]  the  united  states." 

It  will  be  observed  that  the  extracts  all  take  for  granted  the  facts  —  that 
coequal  states  are  acting ;  that  they  are  the  highest  earthly  authority ;  that  the 
constitution  and  government  spring  from  their  concurring  wills,  and  must  be 
and  remain  subordinate  to  them  ;  that  they,  as  republics,  are  aiming  to  govern 
themselves  through  the  instrumentality  of  governmental  agencies ;  and  finally, 
that  they  form  an  association  of  sovereign  states. 

The  punctuation  and  italicizing  are  those  of  the  original. 

28 


434  THE   UNION  OF  STATES. 


[Massachusetts  Centinel,  Oct.  3,  1787.] 

"  It  is  evident  that  all  the  necessary  powers  of  this  federal  government,  are 
fully  consistent  with  every  species  of  right  and  liberty  of  the  people." 

Ibid.  "  The  inhabitants  of  the  city  and  liberties  of  Philadelphia,  have  peti- 
tioned the  legislature  of  Pennsylvania,  '  That  the  American  constitution,  pro- 
posed by  the  federal  convention,  may  be  adopted  as  speedily  as  possible  by  the 
state  of  Pennsylvania,  in  the  manner  recommended  by  the  resolution  of  the 
convention.'  "  [It  was  "  the  state  "  and  not  "  a  section  or  district  of  people  "-J 
or  "group  of  voters  "  that  was  to  adopt.] 

Ibid.,  Oct.  6,  1787.  "  All  duties,  imposts  and  excises  are  uniform  through 
the  United  States ;  likewise  the  rule  of  naturalization  and  the  laws  on  bank- 
ruptcies. The  citizens  of  each  state  shall  be  entitled  to  the  privileges  and 
immunities  of  citizens  in  the  several  states."  [In  those  days  all  "  the  people 
of  the  United  States "  were  thought  to  be  citizens  of  the  states,  as  they  are 
called  by  the  federal  constitution.  See  Art.  III.  §  2 ;  Art.  IV.  §  2.] 

Ibid.  From  a  New  York  paper  of  Sept.  29,  1787 :  "  Yesterday  congress 
resolved  unanimously,  eleven  states  being  present,  that  the  new  constitution 
is  to  be  transmitted  to  the  legislatures  of  the  several  states,  in  order  to  be  sub- 
mitted to  a  convention  of  delegates  to  be  chosen  by  the  people,  agreeably  to 
the  mode  prescribed  by  the  convention."  From  the  Philadelphia  papers  of 
Sept.  26,  it  is  derived  that  "  in  each  of  the  States  of  New  Jersey  and  Dela- 
ware, the  federal  government  has  been  received  with  universal  satisfaction." 

Ibid.  "We  are  informed  that  in  New  York  the  constitution  promises  to  be 
highly  popular  with  the  citizens." 

Ibid.  "  The  supreme  executive  of  this  commonwealth  received  from  con- 
gress the  constitution."  The  paper  goes  on  to  say  that  it  is  to  be  sent  to  "the 
legislature,  which  is  to  call  a  convention  for  the  purpose  of  adopting  the  same." 

Ibid.,  Oct.  10,  1787.  Prom  a  Philadelphia  paper  of  Sept.  29th : 
"  The  motion  in  the  general  assembly,  by  George  Clymer,  that  a  convention 
be  called  to  consider  the  proposed  federal  constitution,  was  adopted  by  48  to 
19  —  the  19  seceded,  leaving  the  house  without  quorum.  Next  day  one  of  the 
minority  was  brought  in  by  force,  by  persons  unknown  —  was  fined  5s  —  on 
attempt  to  leave  there  were  cries  to  *  stop  him/  but  finally  the  house  permitted 
him  to  leave  —  he  and  the  rest  of  the  minority  thenceforward  stayed  away  — 
and  the  house  finally  appointed  the  1st  Tuesday  in  November  for  choosing 
delegates,  and  the  last  Tuesday  of  same  month,  for  the  meeting  of  the  conven- 
tion at  the  State  House  in  Philadelphia."  [This  not  only  indicates  the  viru- 
lence of  the  opposition,  but  shows  the  entire  independence  of  the  contest  over 
the  plan  in  Pennsylvania.] 

Ibid.  "  A  late  sensible  and  judicious  writer,"  says,  this  constitution  "  is 
calculated  to  answer  the  exigencies  of  the  times,  and  to  unite  in  one  federal 
body  the  interests  of  all."  "  Why  should  members  of  one  and  the  same  family 
clash,  when  the  interests  of  the  family  are  the  same." 

Ibid.,  Oct.  13, 1787.  " From  a  Portsmouth  (N.  H.)  paper  of  Oct.  2  :" 
"  In  this  metropolis  "  "  all  ranks  are  highly  animated  with  the  pleasing  hope 
that  this  glorious  structure,  supported  by  13  pillars  will  speedily  be  completed." 
[It  was  a  common  figure  to  call  the  states  pillars  upon  which  the  federal  super- 
structure was  to  be  reared.  The  fathers  never  contemplated  that  the  federal 
system  should  be  based  on  any  ground  of  its  own.  It  was  to  have  and  to  hold 
nothing  of  original,  but  all  of  derivative  and  delegative  right.  It  was  to  be  an 
agent  and  trustee:  so  said  the  fathers  and  the  states  habitually.  "  The  states" 


APPENDIX  A.    NO.  1.  435 

are  "  the  essential  component  parts  of  the  system"  was  Hamilton's  phrase,  and 
it  was  the  view  of  all.  They  were  contemplated  and  habitually  spoken  of  as  the 
actors  in  making  the  system.  They  were  to  go  into  it,  as  complete  political 
bodies,  and  exist  therein  unchanged  in  name  and  character;  and  to  be  the 
sole  actors  and  sources  of  power.  The  reader  will  observe  that  in  these 
extracts,  constant  reference  is  made  to  the  action  of  the  states  as  political 
bodies.] 

Ibid.,  Oct.  20,  1787.  Extract  from  speech  of  John  Hancock,  governor, 
dated  Council  Chamber,  Oct.  17,  1787  :  He  said  the  general  convention  had 
done  what  they  were  appointed  for,  and  "  reported  to  congress  '  a  constitution 
for  the  united  states  of  America.'  I  have  received  the  same,  and  directed  the 
secretary  to  lay  it,  together  with  the  letter  accompanying  it,  before  the  legisla- 
ture, that  measures  may  be  adopted  for  calling  a  convention  of  this  common- 
wealth, to  take  the  same  into  consideration.  .  .  .  The  characters  of  the  gentle- 
men who  have  compiled  this  system,  are  so  truly  respectable,  and  the  object  of 
their  deliberations  so  vastly  important,  that  I  conceive  every  mark  of  attention 
will  be  paid  to  the  report.  Their  unanimity  in  deciding  those  questions  wherein 
the  general  prosperity  of  the  nation  is  so  deeply  involved,  and  the  complicated 
rights  of  the  states,  and  of  each  separate  state,  are  so  intimately  concerned,  is 
very  remarkable  :  and  I  persuade  myself  that  the  delegates  of  this  state,  when 
assembled  in  convention,  will  be  able  to  discern  that  which  will  tend  to  the 
future  happiness  and  security  of  all  the  people  in  this  extensive  country." 

Ibid.  "From  the  Pennsylvania  Gazette  —  important  queries  :""...  3. 
Whether  the  constitution  framed  by  the  late  convention  ought  not  to  be  adopted 
by  the  several  states,  as  the  only  means  of  extricating  the  people  from  the  dis- 
tresses they  at  present  labor  under.  ...  4.  Whether,  i£  the  constitution  now 
offered  should  be  refused,  there  is  any  probability  of  obtaining  another,  more 
generally  acceptable." 

Ibid.  "  From  the  very  handsome  manner  in  which  our  worthy  governor 
speaks  of  the  new  constitution,  and  from  the  observations  of  several  legislators 
yesterday,  we  anticipate  an  early  day  being  fixed  by  the  general  court  for  the 
meeting  of  our  convention  —  that  this  state  may  have  the  great  honor  and  sin- 
gular happiness  of  being  the  first  to  adopt  a  system  second  to  none  in  the 
world." 

The  Massachusetts  Centinel,  of  Oct.  24,  1787,  publishes  with  high  encomia, 
the  speech  of  Hon.  James  Wilson,  (one  of  the  delegates  of  Pennsylvania 
in  the  federal  convention,)  at  the  state-house  in  Philadelphia.  It  is  copied 
from  the  Pennsylvania  Herald  of  October  10.  The  following  are  extracts :  His 
speech  is  professedly  to  answer  "  objections  that  have  been  raised."  Before 
"  refuting  the  charges  which  are  alleged,"  he  thus  "  discriminates  between  the 
state  constitutions,  and  the  constitution  of  the  united  states." 

"  When  the  people  established  the  powers  of  legislation  under  their  separate 
governments,  they  invested  their  representatives  with  every  right  and  authority 
which  they  did  not,  in  explicit  terms,  reserve,  and  therefore  upon  every  ques- 
tion respecting  the  jurisdiction  of  the  house  of  assembly,  if  the  frame  of  gov- 
ernment is  silent,  the  jurisdiction  is  efficient  and  complete.  But  in  delegating 
federal  powers,  another  criterion  was  necessarily  introduced ;  and  the  congres- 
sional authority  is  to  be  collected,  not  from  tacit  implication,  but  from  the  posi- 
tive grant  expressed  in  the  instrument  of  union.  Hence  it  is  evident,  that  in 
the  former  case,  everything  which  is  not  reserved  is  given,  but  in  the  latter, 
the  reverse  of  the  proposition  prevails,  and  everything  which  is  not  given  is  re- 
served. This  distinction  will  furnish  an  answer  to  those  who  think  the  omis- 
sion of  a  bill  of  rights  a  defect  in  the  proposed  constitution.  For  it  would  have 
been  superfluous  and  absurd,  to  have  stipulated  with  a  federal  body  of  our  own 


436  THE  UNION  OF  STATES. 

creation,  that  we  should  enjoy  those  privileges  of  which  we  are  not  di- 
vested, either  by  the  intention  or  the  act  that  has  brought  that  body  into 
existence." 

In  reply  to  the  objection  that  the  rights  of  trial  by  jury  in  civil  cases,  was 
abolished  or  endangered,  in  the  states,  he  said :  "  Let  it  be  remembered,  then, 
that  the  business  of  the  federal  convention  was  not  local  but  general;  not 
limited  to  the  views  and  establishment  of  a  single  state,  but  co-extensive  with 
the  continent,  and  comprehending  the  views  and  establishments  of  thirteen  in- 
dependent sovereignties."  [In  other  words  trial  by  jury,  habeas  corpus,  free- 
dom of  the  press,  owning  and  enjoying  property,  religious  freedom,  marrying, 
voting,  etc.,  etc.,  "  relating  only  to  personal  rights  "  —  to  use  the  words  of 
another  great  Pennsylvania  statesman,  Tench  Coxe  —  "could  not  be  mentioned 
in  a  contract  among  sovereign  states."  How  absurd  to  suppose  that  up  to  the 
time  these  organized  commonwealths  were  compacting,  all  these  personal  rights 
and  privileges  were  unestablished  and  insecure.] 

As  to  the  objection  that  the  "  constitution  tolerates  a  standing  army  in  time 
of  peace,"  he  says  he  knows  no  nation  that  does  not  "  maintain  the  appearance 
of  strength  in  a  season  of  the  most  profound  tranquillity.  Nor  is  it  a  novelty 
with  us,  for  under  the  present  articles  of  confederation  congress  certainly  pos- 
sesses the  reprobated  power,  and  the  exercise  of  that  power  is  proved  at  this 
moment  by  her  cantonments  along  the  banks  of  the  Ohio." 

Speaking  of  attacks  on  the  senate,  he  says  :  "  When  we  reflect  how  various 
are  the  laws,  commerce,  habits,  population  and  extent  of  the  confederated  states, 
this  evidence  of  mutual  confidence  and  accommodation,  ought  rather  to  com- 
mand a  generous  applause,  than  to  excite  jealousy  and  reproach." 

Next  he  meets  the  objection  that  the  "  federal  constitution  is  not  only  calcu- 
lated, but  designedly  framed  to  reduce  the  state  governments  to  mere  corporations, 
and  eventually  to  annihilate  them.  The  objectors  do  not  seem  to  comprehend 
the  extent  of  the  term  corporation.  It  is  commonly  applied  to  petty  associa- 
tions of  a  few  individuals,  but  in  its  enlarged  sense  it  comprehends  the  govern- 
ment of  Pennsylvania,  the  existing  union  of  the  states ;  and  even  this  projected 
system  is  nothing  more  than  a  formal  act  of  incorporation.  But  upon  what 
pretence  can  it  be  alleged  that  it  was  designed  to  annihilate  the  state  govern- 
ments, for  I  will  undertake  to  prove  that  upon  their  existence  depends  the  ex- 
istence of  the  federal  plan."  He  then  proceeds  to  show  how  the  president, 
senate  and  house  of  representatives,  are  to  be  appointed.  The  president  is  to 
be  chosen  by  electors  to  be  chosen  "in  such  manner  as  the  legislature  of  each 
state  may  direct"  —  no  legislature,  no  electors,  no  president.  The  senators 
are  "  two  senators  from  each  state  chosen  by  the  legislature"  — no  legislature, 
no  senate.  The  house  of  representatives  is  composed  of  members  chosen  every 
two  years  "  by  the  people  of  the  several  states,  and  the  electors  in  each  state  " 
are  those  that  elect  members  of  the  second  branch  of  the  state  legislature. 
"  Unless,  therefore,  there  is  a  state  legislature,  that  qualification  cannot  be 
ascertained,  and  the  popular  branch  of  the  federal  government  must  likewise 
be  extinct.  From  this  view,  it  is  evidently  absurd  to  suppose  that  the  anni- 
hilation of  the  separate  governments  will  result  from  their  union." 

[Tench  Coxe  explained  this  very  point  as  follows  :  "As  under  the  old,  so 
under  the  new  federal  constitution,  the  thirteen  united  states  were  not  intended 
to  be,  and  really  are  not,  consolidated  in  such  a  manner  as  to  absorb  or  destroy 
the  sovereignties  of  the  several  states."] 

"  The  power  of  direct  taxation  has  likewise  been  treated  as  an  improper 
delegation  to  the  federal  government;  but  when  we  consider  it  as  the  duty 
of  that  body  to  provide  for  the  national  safety,  to  support  the  dignity  of  the 
union,  and  to  discharge  the  debts  contracted  upon  the  collective  faith  of  the 
states,  for  their  common  benefit,  it  must  be  acknowledged  that  those  upon 


APPENDIX   A.    NO.  1. 

whom  such  important  obligations  are  imposed,  ought  in  justice 

to  possess  every  means  requisite  for  a  faithful  performance  of  their  trust." 

Speaking  of  a  law  of  the  state  of  Pennsylvania,  he  says,  "  as  it  was  the  imbe- 
cility of  the  present  confederation  which  gave  rise  to  the  funding  law,  that  law 
must  naturally  expire  when  a  competent  and  energetic  federal  system  shall  be 
substituted." 

[He  elsewhere  speaks  of  the  new  system  as  "a  confederation  of  states," 
with  additional  powers,  an  executive,  a  judiciary,  a  second  branch  of  the 
I  't/ixlature,  and  a  power  to  regulate  commerce,  not  possessed  by  the  first  fed- 
eration.] 

In  conclusion,  speaking  in  general  terms  of  the  opposition  to  the  plan,  he 
considers  it  to  originate  with  those  who  are  interested  in  those  offices,  judicial 
appointments,  and  collectors  of  revenues  which  are  transformed  [transferred?  J 
from  the  individual  to  the  aggregate  sovereignty  of  the  states. 

Says  the  editor,  in  referring  to  this  speech,  "the  quintessence  of  all  that  can 
be  objected  to  the  American  constitution,  is  in  the  address  of  the  Pennsylvania 
seceders,  and  a  complete  answer  to  them,  and  other  anti-federalists  can  be  found 
in  the  address  of  Mr.  Wilson." 

[Mr.  Curtis,  the  author  of  the  so-called  history  of  the  constitution,  affects 
great  partiality  for  James  Wilson,  and  shows  it  in  quoting  from  him.  One  evi- 
dence of  it  is,  that  while  quoting  about  12  or  14  large  pages,  he  leaves  out  all 
the  above,  and  many  similar  passages  of  Mr.  W.'s  great  efforts  in  the  conven- 
tion of  Pennsylvania,  wishing  apparently  to  show  that  Mr.  W.  favored  consoli- 
dation, while,  in  reality,  he  was  trying  to  defend  the  new  system  from  even  the 
suspicion  of  it.] 

Ibid.,  Oct.  24,  1787. 

[From  the  New  Haven  Gazette,  Oct.  17.] 

"  Yesterday  the  general  assembly  passed  a  resolve  appointing,  Monday,  the 
12th  day  of  November  next,  for  the  several  towns  to  choose  delegates  to  a 
state  convention,  to  be  holden  at  Hartford,  first  Thursday  of  January  next  to 
consider  the  doings  of  the  late  federal  convention  at  Philadelphia  —  the  dele- 
gates to  be  chosen,  as  the  representatives  to  the  general  assembly  are." 

Ibid. 

[From  the  New  York  Packet,  Oct.  12.] 

"  The  inhabitants  of  Burlington  county,  and  district  Carlisle,  New  Jersey, 
have  voted  to  instruct  their  general-assembly-men  to  call  a  convention  for 
adopting  the  federal  constitution  as  soon  as  possible." 

Ibid.,  Oct.  27,  1787.  In  the  Massachusetts  house  of  representatives  there 
was  a  debate  in  reference  to  calling  a  convention.  Said  Mr.  Davies,  of  Boston, 
"  The  people  will  consider  this  point,  with  all  the  other  proceedings,  when  in 
state  convention.  ...  To  say  that  the  people  have  no  right  to  do  this,  if  it 
shall  appear  to  them  that  the  old  confederation  is  inadequate  to  all  the  pur- 
poses of  national  government,  is  just  saying  that  we  had  no  right  to  oppose 
the  British  power  when  it  became  oppressive,  and  that  we  are  all  now  in  one 
great  rebellion."  [He  was  speaking  in  reference  to  the  alleged  indissoluble- 
ness  of  the  old  confederation.] 

"  The  probability  is  that  the  proposed  government  will  meet  the  wishes  of 
almost  all  the  people  of  almost  every  state  m  the  union." 

Judge  Parsons,  of  Newburyport,  on  the  same  occasion,  said :  "  As  the  peo- 
ple alone  were  the  proper  and  immediate  judges  of  the  system  proposed  by  the 


438  THE  UNION  OF  STATES. 

federal  convention,  he  hoped  there  was  not  a  person  in  thai  house  who  would 
attempt  an  abortion  of  so  noble  a  conception." 

Ibid.  Contains  a  statement  that  the  elections  in  Pennsylvania  show  that 
"a  large  majority  of  the  people  of  that  state  are  strongly  attached  to  the  new 
federal  constitution." 

Again,  "  Accounts  from  Maryland  show  that  the  federal  government  will  be 
adopted  almost  unanimously  in  that  state." 

[Ibid.  Oct.  31,  1787.] 

Poplicola  [very  able  and  clear,]  replying  to  objections,  says  :  "We  are  not  to 
forget  that  these  very  officers  [of  the  federation]  are  the  creatures  of  our  own 
choice,  amenable  to  us,  and  to  be  re-called  at  our  pleasure." 

"  The  gentleman  [an  old  whig]  has  observed  that  people  are  unwilling  to  part 
with  the  power  they  have  got;  it  is  for  this  reason  I  do  not  believe  the  inhabi- 
tants of  this  country  will  ever  lose  sight  of  the  essential  privilege  of  calling 
their  public  servants  to  account." 

"  It  is  a  known  truth  that  in  the  constitution  [proposed],  every  privilege  is 
left,  which  is  not  expressly  taken  away  from  the  people." 

Ibid.,  same  date.  "  A  correspondent  remarks  that  the  same  or  similar  objec- 
tions to  those  raised  against  the  new  constitution  were  offered  against  the  con- 
federation. It  was  to  be  an  irreversible  decree,  like  the  laws  of  the  Medes  and 
Persians.  Experience  has  proved  the  fallacy  of  such  an  idea,  and  those  who 
object  to  the  American  constitution  on  this  score  do  it  in  mere  wantonness  or 
from  calculating  the  tyrannical  views  of  those  who  may  chance  to  govern  us  by 
their  own  propensities  to  domination  and  lust  of  power." 

Ibid.,  Nov.  3,  1787.  From  the  Middlesex  Gazette.  "There  can  be  no 
good,  free  and  secure  government  but  where  every  man  is  under  the  coercive 
power  of  the  law.  .  .  .  Under  this  system  [the  federal  constitution]  no  man  can 
be  above  law.  Rulers  must  govern  according  to  law ;  or  ...  be  chastised. 
The  people  have  power  to  compel  their  rulers  to  do  their  duty." 

Ibid.  The  editor  says  with  reference  to  the  judiciary  power  in  this  federal 
government :  "  How  are  disputes  between  a  state  aiid  citizens  of  another  state, 
and  between  citizens  of  different  states  to  be  decided?  " 

Ibid.  The  editor  publishes  a  letter  of  Hon.  Elbridge  Gerry  as  containing 
"  opinions  on  a  subject  of  first  importance  to  the  country,"  from  one  of  the  great 
men.  Gerry  says  :  "  As  the  convention  was  called  for  the  'sole  and  express  pur- 
pose of  revising  the  articles  of  confederation;  and  reporting  to  congress,  and  the 
several  legislatures  such  alterations  and  provisions  as  shall  render  the  federal 
constitution  adequate  to  the  exigencies  of  government,  and  the  preservation  of 
the  union,'  I  did  not  conceive  that  these  powers  extended  to  the  formation  of  the 
plan  proposed ;  but  the  convention  being  of  a  different  opinion,  I  acquiesced  in 
it,  being  fully  convinced  that  to  preserve  the  union,  an  efficient  government  was 
indispensably  necessary,  and  that  it  would  be  difficult  to  make  proper  amend- 
ments to  the  articles  of  confederation."  He  says  further  :  "  The  constitution 
proposed  has  few  if  any  federal  features,  but  is  rather  a  system  of  national  gov- 
ernment," and  suggests  as  questions  necessarily  arising:  "  1st.  Whether  there 
shall  be  dissolution  of  the  federal  government.  2.  Whether  the  several  state 
governments  shall  be  so  altered  as  in  effect  to  be  dissolved  ;  and  3  whether  in 
lieu  of  the  federal  and  state  governments,  the  national  constitution  now  pro- 
posed shall  be  substituted  without  amendment."  [See  I.  Elliott's  Debates, 
492.]  [Gerry,  like  Martin,  Henry,  Lowndes  and  others,  was  trying  to  defeat 
the  constitution  by  charging  it  with  what  the  whole  people  were  averse  to  — 


APPENDIX  A.    NO.  1.  439 

consolidation.  And,  strange  to  say,  these  charges,  which  would  have  defeated 
it  but  for  decisive  refutation,  are  now  predicated  of  it,  as  its  real  meaning,  by 
Dane,  Story,  Webster  and  Curtis  !  They  are  met  and  refuted  herein.] 

Ibid.  "  The  late  continental  convention  have  recommended  calling  state 
conventions  for  the  sole  purpose  of  adopting  or  rejecting  in  toto  their  plan  of 
government."  [The  general  idea  was  "  that  each  state  should  adopt  or  reject 
in  toto,  and  not  attempt  to  amend — this  being  likely  to  produce  confusion  and 
delay."] 

Ibid.,  Nov.  7,  1787,  a  correspondent  writes:  "Besides  the  securities  of  the 
people  arising  out  of  the  federal  government,  they  are  guarded  by  their  state  con- 
stitutions, and  by  the  nature  of  things  in  the  respective  states"  The  article  goes 
on  to  enumerate  the  classes  of  state  officers — governor,  legislators,  judges,  etc. 
—  to  be  "chosen  within  each  state,  without  any  possible  interference  of  the  fed- 
eral government.  The  separate  states  will  also  choose  all  the  members  of  the 
legislative  and  executive  branches  of  the  united  states.  The  people  at  large  in 
each  state  will  choose  their  federal  representatives,  and  .  .  .  the  electors  of  the 
president  and  vice-president  of  the  union.  And  the  legislatures  of  the  states 
will  elect  the  senate,"  etc.  Can  it  be,  then,  — the  article  continues  —  that  "a 
majority  of  the  representatives  "  will  "  betray  their  country  ?  "  "  Will  a  ma- 
jority of  the  senate,  each  of  whom  will  be  chosen  by  the  legislature  of  a  free, 
sovereign  and  independent  state,  .  .  .  destroy  our  liberties  ?  " 

[Massachusetts  Centinel,  Nov.  10,  1871.] 

"President  Sullivan"  has  summoned  "the  general  court  of  New  Hampshire" 
"to  consider  on  business  of  the  highest  importance — the  appointment  of  a  con- 
vention "  to  adopt  or  reject  the  federal  constitution. 

Ibid.,  contains  an  able  and  statesmanlike  letter,  from  which  I  copy  the  follow- 
ing. After  saying  there  is  no  religious  test  for  office  under  "  the  new  consti- 
tution," and  mentioning  other  features,  it  says:  "The  old  federal  constitution 
contained  many  of  the  same  things,  which  from  error  or  disingenuousness  are 
urged  against  the  new  one.  Neither  of  them  has  a  bill  of  rights,  nor  does  either 
notice  the  liberty  of  the  press,  because  they  are  already  provided  for  by  the 
state  constitutions  ;  and,  relating  only  to  personal  rights,  they  could  not  be  men- 
tioned in  a  contract  among  sovereign  states.  The  people  will  remain,  under  the 
proposed  constitution,  the  fountain  of  power  and  honor.  The  president,  the  sen- 
ate, and  house  of  representatives  will  be  the  channels  through  which  the  stream 
will  flow — but  it  will  Row  from  the  people,  and  from  them  only :  Every  office, 
religious,  civil  and  military,  will  be  either  their  immediate  gift,  or  it  will  come 
from  them  through  the  hands  of  their  servants.  And  this  will  be  firmly  guaran- 
teed to  them  under  the  state  constitutions,  which  they  respectively  approve,  for 
they  cannot  be  royal  forms  [of  government,]  cannot  be  aristocratic,  but  must  be 
republican. 

"Nothing  can  be  more  plain  to  the  eye  of  reason,  or  more  true,  than  that 
the  SAFETY  of  the  people  is  amply  provided  for  in  the  federal  constitution,  from 
the  restraints  imposed  on  the  president  —  those  imposed  on  the  senate  —  and 
from  the  nature  of  the  house  of  representatives  —  and  that  of  the  security  for 
national  safety  and  happiness,  from  every  part  of  the  federal  government. 

"There  is  no  spirit  of  arrogance  in  the  new  federal  constitution.  It  ad- 
dresses us  with  becoming  modesty,  admitting  that  it  may  contain  errors.  Let 
us,  fellow-citizens,  give  it  a  trial ;  and  when  experience  has  taught  its  mistakes, 

THE     PEOPLE    WHOM    IT     PRESERVES    ABSOLUTELY    ALL-POWERFUL,    Can    reform 

them."  [This  letter  is  from  Tench  Coxe,  of  Pennsylvania,  one  of  the  great 
statesmen  and  political  writers  of  that  period.  Note,  that  the  security  for 


440  THE   UNION  OF   STATES. 

national  safety  and  happiness  "  was  to  be  attained  by  a  contract  among  sove- 
reign states."  And  the  people,  as  such  "sovereign  states,"  were  to  be 
"  preserved  all-powerful."  This  letter  was  published  everywhere,  and  never 
controverted  as  an  exposition.] 

Ibid.,  Nov.  14,  1787.  A  correspondent  speaks  of  the  "new  states'  constitu- 
tion." 

Ibid.,  Nov.  17,  1787.  An  extract  is  published  from  the  Pennsylvania 
Journal  of  Nov.  3d,  to  the  effect  that  the  house  of  assembly  of  New  Jersey, 
after  declaring  that  "  the  commissioners  from  this  state  have  reported  a  consti- 
tution for  the  future  government  of  the  united  states,  agreed  upon  "  in  the 
convention  of  states ;  and  further  declaring  it  "  to  be  the  earnest  wisli  of  the  good 
people  of  this  state,"  that  there  be  assembled  "a  convention  within  the  same, 
for  the  purpose  of  deliberating  and  determining  on  said  constitution"  —  unani- 
mously passed  resolutions  in  favor  of  a  convention,  fixing  time,  etc. 

Ibid.,  Nov.  21, 1787.  Twenty-three  formidable  objections  to  the  new  federal 
plan,  are  urged  by  an  officer  of  the  late  Continental  army,  substantially  as 
follows : 

1.  It  is  not  merely,  as  it  ought  to  be,  a  confederation  of  states,  but  a  govern- 
ment of  individuals. 

2.  The  powers  of  congress  extend  to  the  lives,  liberties  and  property  of  every 
citizen. 

3.  The  sovereignty  of  the  different  states  is  ipso  facto  destroyed  in  its  most 
essential  parts. 

4.  What  remains  of  it,  will  make  dissensions  between  state  and  congress, 
and  terminate  in  the  ruin  of  one  or  the  other. 

5.  "The  union  of  the  states,"  will  be  destroyed  in  a  struggle,  or  their  sove- 
reignty swallowed  up  by  an  aristocracy,  because  if  two  equal  sovereign  powers 
command  the  citizens'  purses,  they  will  struggle  for  the  spoils,  and  the  weakest 
will  yield  to  the  strongest. 

6.  Congress,  possessing  these  great  powers,  the  liberties  of  the  states  and 
people  are  not  secured  by  bill  of  rights. 

7.  The  sovereignty  of  the  states  is  not  expressly  reserved,  the  form  and  not 
the  substance  of  their  government  being  guaranteed  to  them  by  express  words. 
[How  much  this  wretched  quibble  about  the  "form,"  but  not  the  substance 
of  a  republican  government  being  guarantied,  is  like  the  constitutional  exposi- 
tions of  the  Massachusetts  school.] 

8.  Trial  by  jury  is  abolished  in  civil  cases. 

9.  The  liberty  of  the  press  is  not  secured,  and  congress  can  destroy  it. 

10.  Congress  can  keep  a  standing  army  in  time  of  peace. 

In  the  13th,  he  finds  fault  with  representation ;  in  the  14th,  with  the  senate ; 
in  the  15th,  he  says  the  president  is  an  elective  king,  and  has  command  of  the 
army ;  in  the  17th,  he  complains  of  want  of  rotation  in  office  ;  in  the  18th,  that 
annual  elections  are  abolished ;  in  the  19th,  that  congress  can  fix  time,  place 
and  manner  of  elections. 

In  the  21st  he  says  the  militia  is  to  be  commanded  by  congress  and  that 
peace  men  may  be  compelled  to  bear  arms.  In  the  22d  he  fears  the  government 
will  be  expensive,  the  judiciary  part  particularly.  In  the  23d  he  concludes  that 
the  new  plan  of  government  partakes  of  monarchy  and  aristocracy.  . 

Ibid.  "  The  general  assembly  of  Delaware  "  has  "  provided  for  a  conven- 
tion to  consider  the  proposed  plan  of  government." 

"  Five  states  have  agreed  "  to  conventions  for  the  purpose. 

Ibid.,  Nov.  24,  1787.  "New  Haven,  Nov.  15.  Virginia  has  directed  a 
convention  to  meet  next  May,  with  powers  not  only  to  accept  or  reject,  but  to 
amend  the  new  constitution." 


\ 
APPENDIX   A.    NO.  1.  441 

"  It  is  very  evident  that  should  the  arts,  lies  and  misrepresentations  of  the 
enemies  to  a  federal  system  so  far  delude  the  good  people  of  the  states  as  to 
reject  the  new  constitution,  all  government  will  be  at  an  end.  And  what  then 
will  become  of  the  state  constitutions  ?  " 

Ibid.,  Nov.  28,  1787. 

An  able  contributor  shows  that  as  the  English  constitution  was  unwritten 
and  English  governmental  powers  somewhat  undefined,  the  English  people  "in- 
sisted on  an  expressed  bill  of  rights" — an  "express  confirmation  of  those 
parts  of  their  constitution  which  former  monarchs  had  denied  or  violated." 
"  If  we  [the  people  of  Massachusetts]  had  not  a  state  constitution  already 
declared  on  paper,  and  if  we  were  now  in  the  same  circumstances  we  were  in, 
when  we  seceded  from  Britain,  and  before  we  had  ascertained  and  declared  all 
our  rights,  it  might  be  more  necessary  for  us  to  do  it  now,  when  we  are  to 
form  a  new  federal  compact.  But  agreeably  to  the  theory  of  the  original  con- 
tract, ...  we  assembled  in  a  state  convention  eight  years  since,  and  then 
plainly  distinguished,  agreed  to,  and  published,  a  bill  of  rights,  and  form  of 
government  for  this  commonwealth.  I  now  undertake  to  say  that  we  part 
with  few  or  none  of  these  rights  by  accepting  the  new  federal  constitution ; 
that  where  we  part  with  any,  it  is  in  exchange  for  others  that  are  national,  and 
fully  expressed,  and  that  some  of  those  rights,  ascertained  in  the  state  constitu- 
tion, are  even  repeated  in  that  which  is  offered  by  the  federal  convention.  .  .  . 
The  first  section  in  the  federal  form,  will  help  our  eye-sight  to  see  that  we  re- 
tain all  our  rights  which  we  have  not  expressly  relinquished  to  the  union. 
That  section  declares  that  all  legislative  powers  herein  given  (i.  e.,  given  in  the 
new  constitution)  shall  be  vested  in  congress,  etc.  The  legislative  powers  which 
are  not  given  therein,  are  surely  not  in  congress ;  and  if  not  in  congress,  are 
retained  by  the  several  states  and  secured  by  their  several  constitutions. 

"  The  opposers  of  the  new  government  charged  that  '  the  liberty  of  the  press 
is  not  provided  for.'  But  the  real  question  is,  where  is  it,  taken  away  ?  The 
several  state  constitutions  already  protect  the  liberty  of  the  press,  and  no 
legislative  power  is  given  to  congress  to  restrict  that  liberty.  .  .  .  Congress  has 
no  legislative  powers  but  what  are  given  them  by  the  constitution ;  they  there- 
fore can  never  restrict  the  liberty  of  the  press."  "  So,"  he  proceeded  to  say, 
"with  trial  by  jury,  which  it  is  objected  the  new  government  does  not  protect." 

[Some  of  the  expressions  of  this  writer  being  identical  with  certain  words 
and  phrases  common  in  the  pretended  interpretations  of  the  Massachusetts 
school,  it  may  be  instructive  to  criticise  them  here.  These  expressions  assume, 
and  indeed  assert,  that  some  part  of  the  people's  "  rights  "  were  "  given  up," 
"parted  with,"  "relinquished,"  "surrendered,"  etc.,  etc.;  that  is  to  say,  alien- 
ated. This  is  the  germ  of  that  idea  which  grows  rapidly  into  the  "govern- 
ment's "  "  right  of  self-preservation,"  and  its  "  absolute  supremacy."  It  is 
almost  needless  to  say  that  such  expressions  are  sheer  fallacies,  though  it  is 
likely  that  few  of  the  utterers  know  it.  The  compact  provides  for  the  "  delega- 
tion "  of  "  powers,"  and  not  for  the  "  surrender"  of  "  rights ;  "  and  there  is 
no  word  in  the  instrument  indicating,  or  even  hinting  at,  such  alienation.  The 
constitutional  words  "  grant,"  "  vest "  and  "  delegate  "  mean  confided  to  agents 
and  trustees  for  the  behoof  of  the  owners.  "  The  people,"  who  are  organized 
republics,  and  have  the  unlimited  and  inalienable  right  to  govern  themselves, 
cannot  attend  to  it  personally,  and,  therefore,  they  do  it  through  "  servants," 
"agents,"  and  "trustees."  These  are  the  very  names  by  which  the  fathers 
designated  the  federal  functionaries,  and  the  purely  vicarious  capacity  of  these 
functionaries  was  ever  kept  in  view. 

Even  a  small  child  ought  to  see  that  if  "the  people"  "surrender"  any 
"  right "  to  the  government,  it  was  the  "  right "  to  govern  them ;  and  when 
this  "right"  is  "given  up,"  the  people  are  under  a  despotism,  as  subjects 


442  THE  UNION  OF  STATES. 

and  slaves,  having  committed  political  suicide.  A  republic  becomes  no  repub- 
lic, when  it  loses  the  absolute  right  of  self-government,  a  right  which,  like 
honor  and  virtue  is  indivisible  and  inalienable.] 

[Massachusetts  Centinel,  Nov.  28, 1787.] 

An  able  writer  under  the  signature  of  Valerius,  says :  It  is  objected  to  the  new 
constitution,  that  it  is  deficient  in  a  bill  of  rights.  This  objection  might  have  had 
the  greatest  weight  in  a  government  merely  national  —  as,  in  this  case,  there 
would  have  been  no  intermediate  checks  between  the  governing  power  and  the 
people,  over  whom  the  constitution  was  intended  to  operate.  But  the  form  of 
government  now  proposed,  is,  by  no  means,  of  this  sort.  It  is  a  federal  govern- 
ment in  every  point  of  view,  and  is  predicated,  in  every  part  of  it,  upon  the  idea 
of  subordinate  constitutions  being  in  actual  operation.  When  we  inquire,  there- 
fore, where  we  are  to  look  for  that  personal  security  inseparable  from  the  very 
idea  of  freedom,  we  are  only  to  cast  our  eye  on  the  respective  constitutions,  and 
on  the  principles  upon  which  they  are  established,  and  the  difficulty  will  be  im- 
mediately resolved.  Had  there  been  no  governments  in  existence,  limited  in 
their  powers  to  their  several  districts,  there  would  have  been  need  of  articles 
defining  and  explaining  those  rights,  of  which  every  individual  feels  himself  pos- 
sessed, and  which  are  as  firmly  secured  to  him,  as  if  they  were  formally  prefixed 
to  the  new  constitution,  in  the  same  manner  that  they  are  so  fully  and  explicitly 
stated  in  our  several  state  constitutions. 

"  When  the  convention  was  in  session,  they  were  to  form  a  constitution  suited 
as  near  as  possible  not  only  to  the  habits  and  dispositions  of  the  people  at  large, 
but  to  the  governments  in  operation.  The  difficulty  was  not,  in  what  way  the 
rights  and  privileges  of  the  people  could  be  secured  to  them  —  it  would  have 
been  absurd  to  have  spent  even  a  day  in  the  contemplation  of  this  object,  for 
these  rights  and  privileges  were  fully  and  effectually  secured  already.  They  saw 
in  the  constitution  of  every  state  the  strongest  provisions  for  the  rights  of  the 
subjects  that  ever  were  yet  committed  to  paper  or  parchment  in  any  country,  or 
in  any  situation.  Indeed  no  spot  on  earth  is  found  but  in  America,  in  which 
such,  or  any  precautions,  were  expressed  to  guarantee  to  each  individual  the 
rights  of  person  and  conscience,  which,  in  this  country,  are  secured,  and  will  be 
forever  inalienable,  whether  delineated  in  the  preamble  to  the  federal  constitu- 
tion or  not. 

"  If  the  convention  had  only  to  select,  for  the  federal  head,  such  powers  as  were 
necessary  for  the  protection  and  safety  of  the  whole,  as  was  really  the  case,  how 
strange  would  it  have  been  for  them,  to  have  formed  a  provision  in  a  bill  of 
rights  to  secure  what  is  already  so  fully  established.  The  liberties  of  the  Ro- 
mans, Greeks,  and  English,  have  been  continued  through  a  series  of  years,  even 
without  the  use  of  the  press,  which  I  conceive  to  be  the  greatest  security  of  all 
others.  Now  will  any  man  say  that  congress,  under  the  new  constitution,  will 
have  a  single  power  to  limit  the  operation  of  this  essential  privilege?  and,  if 
they  have,  in  what  passage  is  such  a  power  expressed  ?  We  have  declared  in 
this  state,  that  the  liberty  of  the  press  is  an  indispensable  right  of  the  people. 
Can  the  congress  alienate  this  right  ?  The  moment  they  attempt  it,  the  new 
constitution  would  be  annihilated,  and  the  question  would  be  put  on  the  issue  of 
force.  Our  state  constitution  declared  that  each  member  of  society  is  possessed 
of  certain  natural  rights,  privileges,  and  immunities.  Does  the  federal  constitu- 
tion say  otherwise  ?  No ;  it  is  set  up  merely  to  confirm  them. 

[No  more  accurate,  clear,  and  forcible  statement  could  be  made.  Comment 
would  weaken  or  obscure  it.  Why  have  not  the  Storys,  Websters,  and  Cur- 
tises,  reproduced  these  writings  ?] 

Ibid.     In  a  Richmond  paper  of  Oct.  27th,  it  is  stated  that  the  Virginia 


APPENDIX  A.    NO.  1.  443 

assembly  "  unanimously  resolved  that  the  new  constitution  be  submitted  to  a 
convention  of  the  people  for  their  full  and  free  investigation  and  discussion," 
the  convention  to  meet  on  the  4th  Monday  in  May. 

Ibid.  The  paper  says  the  citizens  of  Newburyport  are  so  well  pleased  with 
Rufus  King's  conduct  "  in  congress  and  in  the  convention  of  states,"  that  they 
have  elected  him  their  first  delegate  to  the  state  convention. 

Ibid.,  Dec.  5,  1787.  From  the  Connecticut  Courant  is  copied  a  criticism  on 
Hon.  E.  Gerry's  letter.  "...  The  federal  legislature  can  take  cognizance  only 
of  national  questions  and  interests,  and  for  this  purpose  5  or  10  honest  and  wise 
men  chosen  from  each  state — men  of  previous  experience  in  state  legislation — 
will  be  more  competent  than  a  hundred.  .  .  .  The  same  qualifications  that  ena- 
ble you  to  vote  for  state  representatives,  give  you  a  federal  voice.  .  .  .  The 
proposed  plan,  he  [Mr.  Gerry]  tells  us,  involves  these  questions  —  'whether 
the  several  state  governments  shall  be  so  altered  as  in  effect  to  be  dissolved  ? 
Whether  in  lieu  of  the  state  governments,  the  national  constitution  now  pro- 
posed shall  be  substituted  ? '  I  wish  for  sagacity  to  see  on  what  these  questions 
are  founded.  No  alteration  in  the  state  governments  is  even  proposed,  but  they 
are  to  remain  identically  the  same  that  they  now  are.  Some  powers  are  to  be 
given  into  the  hands  of  your  federal  representatives,  but  these  powers  are  all  in 
their  nature  general,  such  as  must  be  exercised  by  the  whole,  or  not  at  all,  and 
such  as  are  absolutely  necessary.  .  .  .  Why  are  we  told  of  the  dissolution  of 
our  state  governments,  when  by  this  plan  they  are  indissolubly  linked.  They 
must  stand  or  fall,  live  or  die  together.  The  national  legislature  consists  of  two 
houses,  a  senate  and  house  of  representatives.  The  senate  is  to  be  chosen  by 
the  assemblies  of  the  particular  states,  so  that  if  the  assemblies  are  dissolved,  the 
senate  dissolves  with  them.  The  national  representatives  are  to  be  chosen  by 
the  same  electors,  and  under  the  same  qualifications,  as  choose  the  state  repre- 
sentatives, so  that  if  the  state  representation  be  dissolved,  the  national  represen- 
tation is  gone  of  course.  State  representation  and  government  is  the  very  basis 
of  the  congressional  power  proposed." 

Ibid.  Northampton,  in  "town  meeting,"  instructed  her  delegates,  Caleb 
Strong  and  Benjamin  Sheldon :  "  We  have  delegated  you  to  meet  in  state  con- 
vention ...  for  the  purpose  of  adopting  or  rejecting  the  reported  constitution 
of  the  united  states  of  America."  The  document  goes  on  to  show  the  impor- 
tance of  the  occasion :  "  The  civil  dignity  of  the  states,  of  the  united  states,  and 
perhaps  of  humanity,"  are  involved,  "  and  we  wish  you  patiently  to  hear,  and 
attentively  to  examine  every  argument  that  shall  be  offered  for  and  against  its 
adoption."  We  want  "  an  equal,  energetic  federal  government."  We  want 
"  the  dignity  and  welfare  of  the  union,  as  well  as  of  Massachusetts  "  promoted. 
While  "  tenacious  of  the  rights  and  privileges  of  the  people,  be  not  afraid  to 
delegate  to  the  federal  government  such  powers  as  are  absolutely  necessary  for 
the  national  honor  and  happiness." 

Ibid.  "  News  from  Pennsylvania  shows  large  majority  of  convention  of  the 
state  in  favor  of  the  constitution." 

Ibid.,  Dec.  8,  1787.  "  Let  the  thirteen  states,  bound  together  in  a  strict 
and  indissoluble  union,  concur  in  erecting  one  great  American  system,  superior 
to  trans- Atlantic  force  and  influence,  and  able  to  dictate  the  terms  of  the  con- 
nection  between  the  old  and  the  new  world." 

Ibid.  News  from  Georgia,  that  the  house  of  assembly  have  recommended  a 
state  convention,  "  for  taking  under  consideration  the  new  federal  constitution." 
News  from  Philadelphia  shows  the  meeting  and  organization  of  the  state  con- 
vention. 

The  editor  reports  the  statement  of  a  correspondent  that  John  Jay  (though 


444  THE  UNION  OF  STATES. 

a  good  and  able  man,)  though  at  first  for,  is  now  against  the  constitution, 
calls  it  a  deep  and  wicked  conspiracy.  In  New  York  it  is  known  by  the  name 
of  gilded  trap.  Elsewhere  it  is  said  or  intimated  that  the  state  of  £Jew  York  is 
likely  to  reject  the  constitution. 

Ibid.  After  giving  the  names  of  those  elected  to  the  convention  from  Boston 
and  other  towns,  the  editor  speaks  of  circumstances  which  "  presage  a  happy 
issue  of  the  deliberations  of  that  great  Areopagus  which  is  to  determine 
whether  this  state  will  assent  to  and  ratify  the  constitution,"  etc.  , 

[Massachusetts  Centinel,  Dec.  10,  1787.] 
Extract  from  speech  of  James  Wilson  in  Pennsylvania  convention : 

"  In  all  governments  there  must  be  a  power  from  which  there  is  no  appeal, 
absolute,  supreme,  uncontrollable.  ...  It  remains  and  flourishes  with  the 
people.  It  is  a  power  paramount  to  every  constitution,  inalienable  in  its 
nature,  and  indefinite  in  its  extent.  For  I  insist,  if  there  are  errors  in  govern- 
ment, the  people  have  the  right  not  only  to  correct  and  amend  them,  but  like- 
wise totally  change  and  reject  its  form ;  and  under  the  operation  of  that  right 
they  can  never  be  wretched  beyond  retrieve,  unless  they  are  wanting  to  them- 
selves. ...  In  a  democracy  [such  as  ours]  the  supreme  power  is  inherent  in 
the  people,  and  is  either  exercised  by  themselves  or  their  representatives." 

The  editor  says :  "  This  speech  which  the  Roman  orator  would  not  blush  to 
own,  ran  through  an  impression  of  several  thousands  in  a  few  days  at  Philadel- 
phia, at  one  shilling  each." 

[Massachusetts  Centinel,  Dec.  18,  1787.] 

A  very  able  reply  —  copied  from  the  Connecticut  Courant  —  to  Col.  George 
Mason's  objections  to  the  federal  constitution,  contains  the  following : 

"  There  is  no  declaration  of  rights,  [says  Col.  M.]  Bills  of  rights  were  intro- 
duced in  England  when  its  kings  claimed  all  power  and  jurisdiction,  and  were 
considered  by  them  as  grants  to  the  people.  They  are  insignificant,  since 
government  is  considered  as  originating  from  the  people,  and  all  the  power 
government  now  has,  is  a  grant  from  the  people.  The  constitution  they  estab- 
lish, with  powers  limited  and  defined,  becomes  now  to  the  legislator  and  the 
magistrate,  what  originally  a  bill  of  rights  was  to  the  people.  To  have  inserted 
in  this  constitution  a  bill  of  rights  for  the  states,  would  suppose  them  to  derive 
and  hold  their  rights  from  the  federal  government,  when  the  reverse  is  the  case." 

"  There  is  no  declaration  of  any  kind  to  preserve  the  liberty  of  the  press,  [says 
Col.  M.]  Nor  is  liberty  of  conscience,  of  matrimony,  or  of  burial  of  the  dead 
mentioned.  It  is  enough  that  congress  have  no  power  to  prohibit  either,  and 
can  have  no  temptation.  This  objection  is  answered  in  that  the  states  have  all 
the  power  originally,  and  congress  have  only  what  the  states  grant  them." 

[The  Centinel  calls  the  article  a  pertinent  critique.  It  is  very  clear  and 
cogent,  and  it  must  be  from  Ellsworth,  Sherman,  Law,  or  some  leading  man 
of  Connecticut.] 

Ibid.,  Dec.  22,  1787.  The  editor,  speaking  of  danger  to  the  liberty  of  the 
press  says:  "As  all  the  powers  congress  are  to  possess,  will  be  the  grant  of 
the  people,  we  can  have  nothing  to  fear  from  that  body  —  if  this  privilege  is 
ever  destroyed,  it  must  be  by  the  people." 

Ibid.,  Dec.  26,  1787,  contains  part  of  a  speech  of  Hon.  Jas.  Wilson  in  the 
Pennsylvania  convention.  He  reasons  that  "  a  bill  of  rights  was  not  neces- 
sary, because  congress  only  have  such  powers  as  are  granted."  And  if  the 
people  should  undertake  to  frame  a  bill  of  rights,  "  what  they  happen  to  omit, 


APPENDIX  A.    NO.  1.  445 

might  be  presumed  to  be  given."  "A  bill  of  rights  would  have  been  im- 
properly annexed  to  the  federal  plan,  and  for  this  plain  reason,  that  it  would 
imply  that  whatever  is  not  expressed  was  given,  which  is  not  the  principle  of 
the  proposed  constitution."  This  principle  ne  declares  as  underscored  above. 
The  italics  are  in  the  original. 

[In  consequence  of  the  fears  aroused  by  the  Websterian  dogmas,  which 
appeared  in  those  days  in  the  guise  of  charges,  made  by  the  enemies  of  the 
constitution,  for  the  purpose  of  defeating  it,  and  which  nearly  accomplished 
the  purpose;  the  people  unfortunately  insisted  on  a  bill  of  rights,  which  to 
allay  their  apprehensions,  and  to  guard  against  the  possibility  of  consolidation, 
(or  a  nationalization  of  the  states,)  was  appended  to  the  constitution  as  amend- 
ments, [see  amendments,  1  to  8  inclusive]  :  and  now  our  politicians,  so-called 
statesmen,  and  many  profound  lawyers,  call  the  federal  (or  league-al)  constitu- 
tion, "the  charter  of  our  liberties"  —  never  dreaming  that  these  provisions 
are  the  sacred  institutes  of  Freedom  herself;  and  are  fundamental  and  vital 
in  the  very  organic  laws  of  all  the  states.  Neither  a  soul  of  the  fathers,  nor 
a  state,  ever  thought  of  a  transfer,  or  a  signing  away,  of  these  great  essen- 
tials, for  it  would  have  been  political  suicide ;  but  the  said  amendments  were 
intended  as  limitations  —  "  to  prevent  an  undue  administration  of  the  federal 
government,"  as  Massachusetts  expressed  it  through  her  ratifying  conven- 
tion.] 

Ibid.  "  The  convention  of  the  state  of  Georgia  were  authorized  to  consider 
said  report,  letter,  and  resolutions  [of  the  federal  convention]  and  to  reject 
or  adopt  any  part  or  the  whole  thereof." 

Ibid.  Copies  an  extract  from  the  Pennsylvania  Gazette,  which  I  will  give 
as  published  to  show  the  ideas  and  impressions  of  that  day : 

"  The  FIRST  PILLAR  of  ff  great  FEDERAL  SUPERSTRUCTURE  raised" 

"DELAWARE.  —  The  deputies  of  the  state  convention  met  at  Dover,  on 
Monday,  the  3d,  and  a  house  being  formed,  they  elected  James  Latimer, 
Esq.,  President.  On  Thursday  they  ratified  the  federal  constitution  by  an 
UNANIMOUS  vote,  and  on  Friday  EVERY  MEMBER  signed  the  ratification  as 
follows : 

"  'We  the  deputies  of  the  people  of  Delaware  state  in  convention  met,  having 
taken  into  our  serious  consideration,  the  federal  constitution,  proposed  and 
agreed  upon  by  the  deputies  of  the  united  states,  in  a  general  convention,  held 
at  the  city  of  Philadelphia,  on  the  17th  day  of  September,  in  the  year  of  our 
Lord,  one  thousand  seven  hundred  and  eighty-seven,  have  approved  of,  as- 
sented to,  and  confirmed,  and  by  these  presents,  DO,  in  virtue  of  the  power 
and  authority  to  us  given  for  that  purpose,  for,  and  in  behalf  of  ourselves  and 
constituents,  FULLY,  FREELY  and  ENTIRELY  APPROVE  OF,  ASSENT  TO,  RATIFY  and 
CONFIRM  the  said  CONSTITUTION.'  ' 

"  SECOND  PILLAR  raised.  On  Wednesday,  the  12th  inst.,  in  the  state  con- 
vention of  Pennsylvania,  the  Hon.  Mr.  McKean,  agreeably  to  notice  given 
on  a  previous  day,  recurred  to  his  motion  made  at  the  opening  of  the  con- 
vention, viz:  RESOLVED,  That  this  convention  do  ADOPT  AND  RATIFY  the 
CONSTITUTION  of  federal  government,  as  agreed  upon  by  the  federal  convention 
at  Philadelphia,  on  the  17th  day  of  September,  1787.  A  lengthy  debate  took 
place,  which  did  not  close  until  12  o'clock  at  night,  when  the  question  being 
put,  the  numbers  were :  for  the  motion,  44 ;  against  it,  22.  The  next  day, 
proclamation  of  the  same  was  publicly  made,  and  was  RATIFIED  by  the  PEOPLE, 
with  those  expressions  of  applause  which  the  sons  of  freedom  alone  know  how 
and  when  to  give."  [The  vote  on  ratification  was  46  to  23.] 

"The  THIRD  PILLAR  raised.  A  letter  dated  at  New  York,  Dec.  20,  1787, 
received  in  town  yesterday,  has  the  following  paragraph,  which  may  be  con- 


446  THE  UNION  OF  STATES. 

sidered  as  authentic,  viz:  'THE  NEW  CONSTITUTION  will  undoubtedly  be 
adopted  —  DELAWARE,  PENNSYLVANIA  and  NEW  JERSEY,  have  ratified  and 
confirmed  it.5'3 

Ibid.,  Jan.  2,  1788.  The  editor  "hopes  before  midsummer  to  give  the  glad 
tidings  that  not  only  NINE  but  TWELVE  of  the  great  pillars  of  the  federal  super- 
structure are  raised,  and  the  whole  completed.  LAUS  DEO  ! " 

Ibid.  Speaks  of  certain  mischiefs  that  "  have  been  realized  by  the  American 
states  from  the  unqualified  sovereignty  of  the  individual  governments." 

[Note  that  then  as  now,  sovereignty  and  government,  were  often  confounded. 
No  one  ever  denied  that  the  people  of  the  state  were  sovereign,  and  that  they, 
as  such  bodies,  were  ordaining  the  constitution,  and  creating  the  government, 
which  was  to  be  administered  by  their  own  subjects.  The  so-called  "sove- 
reignty of  the  state,"  that,  from  its  assumptions,  excited  much  jealousy  and 
opposition,  was  the  state  government  —  a  mere  creature  or  instrument  of  the 
real  sovereignty.  Moreover,  it  was  often  called  "  the  state."  It  is  the  fre- 
quent occurrence  of  these  and  other  confusions  of  terms,  that  afford  such  a 
fine  opening  for  the  tricks  of  exposition,  so  characteristic  of  the  political 
writings  of  our  country.] 

Ibid.,  Jan.  2,  1788.  In  a  very  able  article,  which  may  have  been  written 
by  Elbridge  Gerry,  he  quotes  Wilson,  of  Pennsylvania,  as  saying  that  "  if  the 
objection  "  [that  the  new  plan  consolidates  the  states]  "  is  a  just  objection,  it 
will  be  strongly  against  the  system"  [The  writer  quotes  the  phrase  " con- 
solidation of  our  union  "  —  which  Gen.  Washington,  "  by  unanimous  order  of 
the  convention,"  stated  in  his  letter  to  congress  accompanying  the  federal  plan, 
to  be  the  object  of  the  convention ;  and  comments  severely  upon  it.  Unques- 
tionably the  word  "  consolidation  "  in  this  phrase,  meant  more  solid,  firm,  and 
permanent,  for  the  constitution  was  made,  as  the  preamble  says,  "  to  form  a 
more  perfect  union,"  i.  e.,  a  more  perfect  union  of  states  than  the  other  was  ; 
and  "  consolidation "  can  have  no  meaning  incompatible  with  the  complete 
integrity  of  the  states.  This  very  phrase,  as  well  as  the  one  quoted  from  the 
preamble,  imply  that  the  new  union  was  to  be  of  the  same  character  as  the  eld 
one  —  i.  e.  a  federation  of  states.  It  can  hardly  escape  the  observation  of  the 
intelligent  reader,  that  in  all  these  extracts,  states,  and  not  fractions  of  a 
nation,  are  the  actors,  and  the  exclusive  sources  of  ordaining  power.  The 
dupes  of  the  Massachusetts  school  should  weigh  the  fact.] 

Ibid.,  Jan.  6,  1788.  "The  convention  of  New  Jersey  was  composed  of 
accomplished  civilians,  able  judges,  experienced  generals,  and  honest  farmers." 
As  "  the  ground  work  of  its  proceedings,"  it  "  resolved  that  the  federal  con- 
stitution be  read  by  sections,"  [each  being  fully  debated  until  the  whole  had 
been  examined,]  "  upon  which  the  general  question  shall  be  taken ;  whether 
this  convention,  in  the  name  and  behalf  of  this  state,  do  ratify  and  confirm 
the  said  constitution." 

Ibid.,  Jan.  9,  1788.  No.  III.  of  an  exceedingly  able  series  of  papers  by 
"republican  federalist,"  contains  the  following  — after  recognizing  conventions 
as  the  organs  of  states  for  constitutional  changes :  "  Of  all  compacts,  a  consti- 
tution or  frame  of  government,  is  the  most  solemn  and  important,  and  should  be 
strictly  adhered  to.  The  object  of  it  is  the  preservation  of  that  property  which 
every  individual  in  the  community  has  in  his  life,  liberty,  and  estate"  [It  is 
the  great  mass  of  these  property  rights,  as  well  as  each  individual  right,  no 
matter  how  minute  and  insignificant,  that  the  state  was  organized  to  conserve ; 
and,  to  enable  the  state  to  do  this,  and  to  protect  them  in  so  doing,  the  federal 
constitution  was  built  by  them,  as  an  outer  wall,  with  towers  and  bastions ; 
and  it  is  manned  by  them  for  that  purpose.] 


APPENDIX  A.    NO.  1. 


447 


Ibid.  "  The  accession  of  our  sister  state,  Connecticut,  to  the  new  and  effect- 
ual plan  of  confederation,  is  a  matter  of  real  exultation  to  the  friends  of  honesty 
and  peace"  The  editor  goes  on  to  say,  that  if  certain  virtues,  [which  he  enu- 
merates] "  have  not  forsaken  the  commonwealth,  the  convention  must  adopt 
the  proposed  constitution." 

Fisher  Ames,  in  the  Massachusetts  convention,  is  reported  to  have  said : 

"  The  people  cannot  exercise  the  powers  of  government  in  person,  but,  by 
their  servants,  they  govern ;  they  do  not  renounce  their  power,  they  do  not 
sacrifice  their  rights ;  they  become  the  true  sovereigns  of  the  country,  when 
they  delegate  that  powerj  which  they  cannot  use  themselves,  to  their  trus- 
tees." 

Ibid.,  Jan.  16,  1783.  In  this  number  is  the  following  wood-cut.  The  hand 
erecting  Massachusetts  is  probably  intended  for  the  Hand  of  Providence. 


B  n  n  n 


UNITED    THEY    STAND — DIVIDED    TALL. 

THE  FEDERAL  PILLARS. 


Ibid.  "  A  vessel  arrived  at  Cape  Ann,  after  a  short  passage  from  Georgia, 
confirms  the  pleasing  intelligence,  announced  in  our  last,  that  that  state  has 
unanimously  ratified  the  federal  constitution.  This  is  a  FIFTH  PILLAR  added 
to  the  glorious  fabrick.  May  Massachusetts  rear  the  SIXTH."  [Georgia  was 
the  4th,  Connecticut  the  5th.] 

"  On  Monday  morning,  the  bells  of  this  metropolis  -were  rung  on  account  of 
the  pleasing  intelligence  that  the  state  of  Connecticut  had  added  a  FOURTH 

PILLAR  to  the  GRAND  REPUBLICAN  SUPERSTRUCTURE — the  FEDERAL  CONSTI- 
TUTION. .  .  .  The  accession  of  our  sister  state  Connecticut  to  the  new  and 
effectual  plan  of  confederation  etc.  ...  If  all  sense  of  justice,  honor,  and  public 
faith,  and  every  principle  of  regard  to  the  PEACE  and  HAPPINESS  of  the  united 
states,  have  not  forsaken  this  commonwealth,  the  convention  must  adopt  the 
proposed  constitution." 

[The  reader  will  please  keep  in  mind  that  the  italics,  etc.,  are  all  in  the 
original.] 

Ibid.,  Jan.  19,  1788  : 

"THE  WISH. 

"  I  wish  you  all  may  live  in  peace, 
May  see  the  public  discords  cease, 
Each  state  with  speedy  resolution, 
Adopt  the  federal  constitution, 
Mechanic  arts  and  trade  revive, 
And  agriculture  spread  and  thrive  ; 
And  peace  and  plenty  hand  in  hand, 
Once  more  may  travel  through  the  land,"  etc. 


448  THE  UNION  OF   STATES. 

Ibid.,  Jan.  23,  1788.  In  convention  Jan.  16.  —  Mr.  Cabot  said,  the 
senate  "is  a  representation  of  the  sovereignty  of  the  individual  states"  —  "its 
members  are  delegated  by  the  several  state  legislatures." 

Said  Mr.  Parsons  on  the  same  occasion,  "  the  sovereignty  of  the  states  is 
represented  in  the  senate."  He  repeated  it  in  a  subsequent  debate. 

Hon.  Mr.  White  said :  "  We  ought  to  be  jealous  of  our  rulers ; "  "  he 
would  not  trust  a  flock  of  Moseses,  even." 

Ibid.  The  editor  says  :  "  The  Hon.  convention  have  now  come  to  the  8th 
section  of  the  constitution,  which  specifies  the  POWERS  with  which  congress 
shall  be  INVESTED." 

[These  extracts  partake  of  the  nature  of  contemporaneous  expositions,  and 
they  directly  contradict  Story  arid  Webster,  as  to  tne  formation  and  nature  or 
our  polity.  If  the  intelligent  reader  will  carefully  peruse  all  these  extracts 
from  the  leading  journals  of  Massachusetts,  as  well  as  the  debates  of  the 
Massachusetts  convention  [II.  Ell.  Deb.]  he  will  lose  confidence  in  the  dicta 
of  the  great  expounder,  and  the  great  commentator.  In  those  days,  no  nation 
was  thought  of,  but  such  as  might  be  made  by  the  self-association  of  sovereign 
states.  The  constitution  was  their  "  supreme  law,"  and  the  government  was 
their  creation  and  agency.  The  persons  administering  this  government  were 
to  be  the  citizens  and  subjects  of  the  states,  elected  bv  the  states,  and  owing 
allegiance  to  the  states.  These  assertions  are  susceptible  of  easy  proof.] 

["Massachusetts  Centinel,  Jan.  26, 1788.] 

"Hampden"  suggests,  among  other  amendments,  that  the  words,  as  to  the 
jurisdiction  of  the  federal  courts:  "between  a  state  and  citizens  of  another 
state,"  etc.,  be  stricken  out,  because,  "  laying  a  state  liable  to  be  sued,  robs  it 
of  all  its  sovereignty ;  and,  in  this  case,  may  lay  the  several  states  liable  to  be 
sued  for  their  public  securities." 

[Massachusetts  was,  par  excellence,  the  stickler  for  the  preservation  of  the 
absolute  sovereignty  of  a  state  in  the  "  union  of  states."  In  ratifying,  she 
insisted  on  the  amendment,  that  "  all  powers  not  expressly  delegated "  are 
"  reserved  to  the  several  states,"  which  was  finally  adopted,  and  it  was  her 
leading  men,  notably  Gov.  James  Sullivan,  Gov.  John  Harieock,  and  others, 
and  the  legislature,  that  initiated  the  amendment,  depriving  the  federal  govern- 
ment of  even  judicial  coercion  of  a  state.  See  amendment  XI.] 

Ibid.,  Feb.  2,  1788.  Hon.  Mr.  Sedgwick  said,  in  the  convention  of  Massa- 
chusetts, that  "  if  he  believed  the  adoption  of  the  proposed  constitution  would 
interfere  with  the  state  legislatures,  he  would  be  the  last  to  vote  for  it."  [In 
II.  Ell.  Deb.  77,  a  member  quoted  him  as  saying  that  "  if  he  thought  the  con- 
stitution consolidated  the  union  of  the  states,  he  would  be  the  last  man  to  vote 
for  it."] 

Gov.  Bowdoin,  in  speaking  of  the  objection  that  personal  rights  and  state 
rights  were  endangered,  said : 

"  With  regard  to  rights,  the  whole  constitution  is  a  declaration  of  rights, 
which  primarily  and  principally  respect  the  general  government  intended  to  be 
formed  by  it.  The  rights  of  particular  states  and  private  citizens  not  being  the 
object  or  subject  of  the  constitution,  are  only  incidentally  mentioned.  In  re- 
gard to  the  former,  it  would  require  a  volume  to  describe  them,  as  they  extend 
to  every  subject  of  legislation  not  included  in  the  powers  vested  in  congress ; 
and  in  regard  to  the  latter,  as  all  government  is  founded  on  the  relinqiiishment 
of  personal  rights  in  a  certain  degree,  there  was  a  clear  impropriety  in  being 
very  particular  about  them." 

And  Judge  Parsons  said  the  same  thing  in  the  same  debate,  viz  :  "  The  fed- 


APPENDIX  A.    NO.  1.  449 

eral  constitution  establishes  a  government  of  the  last  description/*  [that  is, 
a  government  of  purely  delegated  powers,]  "and,  in  this  case,  the  people 
divest  themselves  of  nothing."  [This  simply  means  that  the  people  govern 
themselves ;  and  is  equivalent  to  the  statement  of  Eisher  Ames,  quoted 
heretofore.] 

Ibid.  The  editor,  in  noticing  a  decisive  vote  in  the  convention,  says :  "  The 
Massachusettensian  PILLAR  is  reared ;  but  as  the  arch  which  will  connect  it  with 
those  heretofore  erected,  is  not  yet  sprung,  we  cannot  yet  announce  its  ESTAB- 
LISHMENT, as  one  of  the  SUPPORTERS  of  the  FEDERAL  SUPERSTRUCTURE." 

Ibid,  contains  a  paraphrase  of  one  of  ^Esop's  fables  signed  "  Pat/'  as  fol- 
lows: 

THE  BULLS  AND  THE  LION. 

A  FABLE 

Recommended  to  the  serious  consideration  of  the  opposers  of  the  new  constitution. 

Safe,  on  the  Lion's  old  domain, 
The  bulls  enjoy  the  flowery  plain: 
To  conquer,  oft  the  lion  tried, 
But  sorely  pushed  on  every  side  — 
The  monarch  soon  was  taught  to  yield  — 
The  bulls  united  kept  the  field. 
With  grief  we  read  the  dismal  tale, 
That  art  succeeds  where  strength  does  fail. 
New  schemes  and  trickings  Leo  tries 
To  make  the  sturdy  bulls  his  prize; 
And,  by  his  jealous  hints,  and  fears, 
Sets  all  together  by  the  ears. 
His  engines  are  not  set  in  vain, 
Suspicion  agitates  each  brain  ; 
They  soon  grow  fearful  of  each  other, 
Each  scorns  and  shuns  his  faithful  brother, 
Each  feels  his  consequence  his  pride  ; 
They  doubt  each  other  —  they  divide. 
For  want  of  friendship's  powerful  stay 
The  bulls  become  an  easy  prey; 
The  Lion  sees  his  conquest  done, 
And  slays  the  13  one  by  one. 
Thus  we  (it  must  appear  to  all), 
UNITED  STAND— DIVIDED  FALL. 

Ibid.,  Feb.  9,  1788,  contains  the  following  in  large  capitals :  "  RATIFICA- 
TION OF  THE  FEDERAL  CONSTITUTION  BY  MASSACHUSETTS. 

"  The  yeas  and  nays  in  the  convention  were  as  follows : 

"Yeas  — 

"  His  Excellency,  John  Hancock,  Esq.,  president."  [Then  follow  the  rest  — 
footing  up  yeas  187  — nays  168.] 

The  same  number  contains  an  account  of  a  jubilant  procession,  in  which  is 
the  inevitable  federal  ship  drawn  by  thirteen  horses.  Thirteen  guns  were  fired, 
one  for  each  sister. 

[The  same  paper  reproduces  the  wood-cut  described  heretofore,  with  Massa- 
chusetts erect  and  her  arch  sprung.  The  cut  is  preceded  by  the  words :  "  THE 
GRAND  FEDERAL  EDIFICE  ; "  and  followed  by  the  announcement  that  "the  con- 
vention of  this  commonwealth,  on  Wednesday,  5  o'clock  p.  M.,  ASSENTED  to, 
and,  on  Thursday,  RATIFIED  the  constitution."]  And  in  the  editor's  "  Casta- 
lian  fount "  is  an  ode,  and  a  "  wreath  is  fixed  on  Massachusetts'  head  "  for  rati- 

29 


450  THE  UNION  OF   STATES. 

fying.     The  day  is  called  "  the  glorious  and  ever-memorable  6th  of  February." 
One  verse  of  the  ode  is  as  follows  : 

"  And  soon  a  rival  day  shall  shine  ; 
The  task  New  Hampshire  will  be  thine, 

To  give  it  equal  fame  ; 
Another  pillar,  raised  by  thee, 
Will  fill  New  England's  sons  with  glee, 

And  crown  thy  finished  name." 

The  next  number,  February  13,  contains  another  row  of  pillars  with  a  hand 
from  a  cloud  [Providence  r]  raising  New  Hampshire. 

It  also  contains  a  clever  dialogue  between  a  federalist  and  his  neighbor,  in 
which  the  former  says :  "  The  constitution,  in  the  main,  is  a  good  one,  and  far 
better  than  13  states  could  have  been  expected  to  make.  I  hope  it  will  be  well 
administered  —  am  determined  to  be  a  good  subject,  until  I  find  the  contrary, 
and  then  I  will  take  the  best  apparent  method  of  redress." 

"  These  jarring  states  to  bind  in  union's  band  "  is  a  line  of  another  federal 
lyric. 

Ibid.,  Feb.  26, 1788.  It  is  announced  that  Georgia  unanimously  ratified  the 
federal  constitution.  *'  Georgia  is  a  very  rising  state,  possessing  an  extensive 
territory,  and  is  a  great  acquisition  to  the  new  confederacy." 

Ibid.,  Feb.  20,  1788.  "Some  ideas,"  says  a  Hartford  (Ct.)  correspondent, 
"  may  be  formed,  whether  the  proposed  constitution  annihilates  the  sove- 
reignty or  respectability  of  the  several  states,  from  the  following  list  of  the 
convention  of  this  state.  In  it,  for  ratification,  were  two  governors,  one 
lieutenant-governor,  six  assistants,  four  judges  of  the  supreme  court,  etc." 

Ibid.,  March  1st.  In  this  number,  the  device  of  six  federal  pillars  —  the 
seventh  about  rising,  is  followed  by  "  a  new  song,  for  federal  mechanics,"  by 
Hon.  Fras.  Hopkinson.  One  of  the  verses  is  as  follows  : 

"  Up  !  up  with  the  rafters,  each  frame  is  a  state, 
How  nobly  they  rise,  their  span  too  how  great ; 
From  the  North  to  the  South,  o'er  the  whole  they  extend, 
And  rest  on  the  walls,  while  the  walls  they  defend  ; 
For  our  roof  we  will  raise,  and  our  song  still  shall  be, 
United  as  states,  and  as  citizens  free." 

Ibid.,  March  5, 1788.  This  number  contains  a  spirited  addition  to  patriotic 
poetry,  the  last  verse  of  which  is : 

"  So  here  I  end  my  federal  song, 

Composed  of  thirteen  verses, 

May  agriculture  flourish  long, 

And  commerce  fill  our  purses." 

Yankee  doodle,  etc. 

Ibid.,  March  12,  1788.  "The  landholder,"  No.  10,  addresses  the  citizens 
of  New  Hampshire  to  show  why,  to  preserve  the  safety  and  rights  of  the  people 
of  the  state,  said  state  should  join  the  federation.  "If  there  be  any  one  state, 
more  interested  than  the  others,  in  the  adoption  of  this  system,  it  is  New 
Hampshire.  .  .  .  When  the  hour  for  a  permanent  connection  between  the  states 
is  past,  the  teeth  of  the  lion  will  be  again  made  bare ;  and  you  must  either  be 
devoured,  or  become  his  jackal  to  hunt  for  prey  in  the  other  states." 

In  No.  11,  speaking  of  the  advantage  of  revenue  laws,  he  says  —  "  if  you 
now  form  such  a  political  connection  with  the  other  states,  as  will  entitle  you 
to  a  just  share  in  that  revenue  they  raise  on  commerce,"  etc. 


APPENDIX  A.    NO.  1.  451 

Ibid.,  March  19.  1788:  "A  letter  from  Gen.  Washington  to  a  gentleman 
in  this  town  [Boston]  says,  that  from  his  information  from  various  parts  of  the 
state,  there  is  every  prospect  of  the  constitution  being  ratified  by  Virginia." 
[Note,  that  it  is  "by  Virginia"  and  not  by  the  fraction  of  a  nation."] 

"  The  states  of  Massachusetts,  Connecticut,  New  Jersey,  Pennsylvania,  Dela- 
ware and  Georgia,  have  ratified  the  constitution."  ["  The  states  "  —  not  prov- 
inces or  counties.] 

Ibid.,  March  22 :  A  letter  from  Gen.  Washington  savs>  the  adoption  by  Mas- 
sachusetts "  will  be  influential  in  obtaining  a  favorable  determination  in  the 
states  "  where  it  is  yet  pending.  "  No  one  can  say  what  will  be  its  fate  here," 
but  "  I  have  no  doubt  of  its  being  accepted." 

"  The  assembly  of  Rhode  Island  has  refused  "  "  to  call  a  convention  for  tak- 
ing the  federal  constitution  into  consideration." 

Ibid.,  April  30, 1788  :  Poetry  addressed  to  the  people  of  Virginia  New  Year's 
day,  1788,  contains  the  following  verse : 

"  Numbers  vast  will  own  the  plan, 
That  secures  the  rights  of  man, 
Gives  the  states  their  destined  place, 
High  amidst  the  human  race. " 

Ibid.,  May  10  :  "  We  have  the  best  authority  for  asserting  that  the  state  of 
Georgia  has  ceded  50,000,000  acres  to  the  united  states,  when  the  new  consti- 
tution is  in  force." 

Ibid.,  May  26,  1788  :  "  Nothing  further  from  South  Carolina  yet."  "  Vir- 
ginia convention  meets  in  a  few  days."  "  Little  doubt  is  had  that  New  Hamp- 
shire will  ratify  in  a  few  days." 

Extract  from  letter  from  leading  character  in  South  Carolina,  May  1,  1788  : 
"  I  rejoice  in  the  establishment,  as  far  as  it  depends  on  your  state,  of  the 
federal  constitution." 

Ibid.,  June  7,  1788: 

"  We  hope  to-day  to  announce  the  eighth  pillar  of  the  federal  edifice  "  —  "  the 
ratification  of  South  Carolina." 

"  Yesterday  the  honorable  legislature,  agreeably  to  the  constitution  [of  Mas- 
sachusetts] made  choice  of  the  following  gentlemen  as  delegates  to  represent 
this  commonwealth  in  the  congress  of  the  united  states :  Adams,  Gorham,  Sedg- 
wick,  Otis,  Thacher." 

Ibid.,  June  11,  1788  : 

Announces  accession  of  South  Carolina  as  the  "  eighth  pillar  "  of  "  the  grand 
federal  superstructure." 

A  gentleman  of  Virginia  writes  to  a  friend  in  Boston :  "  The  federal  consti- 
tution will  be  adopted  by  us.  The  reception  and  discussion  in  your  state  have 
removed  much  prejudice." 

Ibid.,  June  21,  1788  : 

"  A  gentleman  of  the  first  distinction  at  New  York,"  writes  —  "  the  acces- 
sion of  Virginia  to  the  confederation,  ceases  to  be  a  matter  of  doubt,  and  we 
are  daily  expecting  to  hear  that  the  ninth  pillar  is  raised." 

Ibid.,  June  25,  1788 : 

In  this  number  the  federal  edifice  is  reproduced  with  nine  pillars  up,  and  the 
tenth  rising,  —  without  a  name,  because  it  was  uncertain  which  would  be  the 
next  ratifier. 

The  seventh  and  characterizing  article  —  ornamentally  printed  —  forms  the 
frame  or  border  of  the  picture. 


452 


THE   UNION  OF   STATES. 


The  editor  then  proceeds  to  say  :  "  We  felicitate  our  readers  on  the  acces- 
sion to  the  confederation  of  the  state  of  New  Hampshire,  not  only  because  it 


THE  RATIFICATION   OF  THE  CONVENTIONS  OF   NINE 


I     N.UER] f 


I     GEQR.    I 


CQNW 


I      MASS.     I 


I        MAR. 


S.  C. 


§ 

C 


m 
</> 


•MA    3-lOIJ.aV       MDNIAJI-LVH    OS    S3J.VJ.S    3HJ. 


completes  the  number  of  states  necessary  for  the  establishment  of  the  constitu- 
tion, but  because  it  is  a  frontier,  a  neighboring,  and  to  ^us  really  a  sister  state. 
It  is  now  one  of  the  pillars  of  tbe  great  national  dome" 


APPENDIX  A.    NO.  1.  453  . 

Ibid.,  July  2,  1788  : 

The  editor  thinks  the  governor  of  Rhode  Island  is  about  to  convene  the 
legislature  upon  the  subject  of  calling  a  convention  to  consider  the  federal 
plan.  "  The  weight  in  the  federal  senate,  of  Rhode  Island,  will  be  as  great 
as  that  of  the  largest  state.  To  preserve  the  proper  balance  of  power  in  the 
national  government,  it  will  be  expedient  that  Rhode  Island,  as  well  as  Ver- 
mont, should  accede  to  the  new  confederation."  This  extract  is  published  in 
the  Worcester  Spy  of  July  10,  1788,  as  from  a  letter  from  a  gentleman  in  New 
York. 

The  same  number  contains  a  song,  sung  in  the  grand  procession  at  Ports- 
mouth, in  honor  of  ratification. 

The  following  is  the 

2D  VERSE. 

"  Nine  federal  states  politically  joined 
With  glorious  rays  our  hemisphere  adorn  ; 
As  splendid  stars  in  amity  combined, 
Rise  the  auspicious  harbingers  of  morn." 

3D  VERSE. 

"  Hail  radiant  constellation,"  etc. 

4TH  VERSE. 

"  Confederate  justice  here  shall  poise 
Her  equal  balance,"  etc. 

CHORUS. 

"  In  rapturous  lays, 

Your  voices  raise, 

Columbia's  song, 

In  accents  strong, 

Shall  echo  to  your  joys,  and  dwell  on  every  tongue." 

Ibid.,  July  5th : 

Contains  a  very  able  paper,  addressed  to  the  convention  of  New  York,  which 
repeatedly  speaks  of  "  the  new  confederacy  "  that  is  being  formed. 

And  the  same  "  grand  federal  edifice"  is  pictorially  represented  with  the 
"  10M  pillar  "  —  Virginia. 

[Massachusetts  Centinel,  July  12,  1787.] 

In  reference  to  the  rejection,  or,  rather,  to  the  postponement  of  the  ratifica- 
tion of  the  constitution  by  North  Carolina,  and  other  hindrances,  which  some 
people  seemed  to  think  discouraging,  the  editor  says :  "  In  time  of  war,  the  in- 
strument for  uniting  the  states  was  not  accepted  by  the  states  for  some  years 
after  it  was  submitted.  This  being  the  case,  it  was  hardly  to  be  expected  that 
a  similar  instrument  would,  in  a  time  of  leisure  and  peace,  be  completed  in  a 
quarter  of  the  time.  A  year  hath  not  yet  expired." 

Ibid.,  July  16,  1788. 

"  In  our  next,  we  hope  to  announce  the  erection  of  the  eleventh  pillar  in 
support  of  the  new  roof,  in  the  accession  to  the  confederation  of  the  state  of 
New  York." 

An  account  is  given  of  "the  new  roof  or  grand  federal  edifice"  in  the  federal 
procession  at  Philadelphia,  4th  inst. :  "  The  dome  supported  by  13  Corinthian 
columns "  —  "ten  columns  complete,  three  left  unfinished  "  —  " on  the  pedes- 
tals, the  initials  of  the  13  American  states." 


454 


THE  UNION  OF  STATES. 


"  In  the  evening,  the  grand  edifice,  with  the  10  states  now  in  union,  was 
brought  back,"  etc. 

Ibid.,  Aug.  2,  1788. 

The  editor  announces  the  news  "just  arrived"  of  the  ratification  of  the 
federal  constitution  by  "  THE  DELEGATES  of  the  PEOPLE  of  the  STATE  of  NEW 
YORK."  [The  capitals  are  his.] 

The  editor  then  proceeds  to  make  his  picture  again  —  this  time  with  eleven 
pillars,  the  last  one  oeing  labelled  N.  York. 

"REDEUNT  SATTJENIA  REGNA. 

On  the  erection  of  the  eleventh  pillar  of  the  great  national  dome,  we  beg 
leave  most  sincerely  to  felicitate  OUR  DEAR  COUNTRY." 


THE    FEDERAL   EDIFICE. 


The  foundation  is 
good  —  it  may 
yet  be  saved. 


The  last  pillar  is  intended  for  Rhode  Island,  who  was  then  holding  herself 
aloof,  with  "  absolute  sovereignty,"  —  to  use  Mr.  George  T.  Curtis'  admission, 
—  but  politically,  morally,  and  financially,  much  disordered. 

"  ELEVEN  STARS  in  quick  succession  rise, 
ELEVEN  COLUMNS  strike  our  wondering  eyes, 
Soon  o'er  the  whole  shall  swell  the  beauteous  dome, 
Columbia's  boast  and  freedom's  hallowed  home." 

The  following  extracts  are  from  the 

MASSACHUSETTS  SPY,  OR  THE  WORCESTER  GAZETTE. 

This  paper  had  been  suspended  during  the  Shays  rebellion,  and  its  publication 
was  resumed  with  No.  783,  Vol.  XVII.,  April  3,  1788. 

In  this  number  of  April  3,  the  printer  tells  the  public,  that  "  thanks  to  our 
present  legislature,"  this  paper  is  "at  length  restored  to  its  constitutional 
liberty,"  "  after  a  suspension  of  two  years."  "  Heaven  grant  that  the  freedom 
of  the  press,  on  which  depends  the  freedom  of  the  people,  may  in  the  united 
states  be  ever  guarded  with  a  watchful  eye,  and  defended  from  shackles  of 
every  form  and  shape,  until  \hefinal  trump  is  played.'" 

A  paragraph  in  the  same  number,  shows  that  even  the  negroes  of  Massachu- 
setts understood  the  distinctness  of  the  states.  One  of  them  was  tried  for 
theft  in  some  tribunal  of  their  own,  and  the  sentence  was  :  "  Fourteen  tripe  on 
he  necked  back,  tirteen  for  united  tates  —  one  for  brack  company." 

Ibid,  April  10,  1788. 

The  editor  says :  "  Delegates  are  to  be  elected  (in  North  Carolina)  to  meet 
in  convention  first  Monday  in  March,  to  deliberate  and  determine  on  the  new 


APPENDIX  A.    NO.  1.  455 

federal  constitution,  and  if  approved  of  by  them,  to  ratify  the  same,  on  behalf 
of  that  state." 

Extract  from  the  account  of  the  proceedings  of  the  legislature  :  "The  senate 
has  not  concurred,  with  the  house,  in  restoring  to  the  rights  of  citizenship, 
Shays,  Day,  and  others." 

Extract  from  a  letter  of  John  Adams  to  John  Jay,  Dec.  16,  1787,  "as  all 
the  great  principles  necessary  to  order,  liberty  and  safety,  are  respected  in  it, 
...  I  confess  I  hope  to  hear  of  its  adoption  by  all  the  states."  [Not  by  the 
nation.] 

Ibid.,  June  12,  1788. 

Extract  from  a  North  Carolina  letter,  dated  May  14,  1788  :  "I  venture  to 
predict  that  the  constitution  will  be  adopted  by  a  respectable  majority  of  this 
state,  for  our  convention  will  never  be  so  mad  as  to  vote  themselves  out  of  the 
union,  and  think  of  standing  upon  their  own  bottom  a  distinct  nation,  sur- 
rounded by  powerful  and  confederated  states." 

[Nevertheless,  North  Carolina  did,  on  August  1,  1788,  reject  the  constitu- 
tion by  a  vote,  in  convention,  of  188  to  88,  making  it  known,  however,  that 
she  would  accede  when  the  amendments,  which  Massachusetts  had  proposed 
for  the  preservation  of  state  integrity,  should  be  adopted.  Thereafter,  to  wit, 
on  Nov.  21,  1789,  feeling  assured  of  the  amendments,  she  held  a  convention 
and  ratified.] 

Ibid.,  June  19,  1788. 

"  Philadelphia,  May  28.  A  correspondent,  who  desires  the  adoption  of  the 
constitution  by  every  state,  observes  that  the  state  of  Georgia  has  granted 
30,000,000  acres  of  land  to  the  new  confederacy,  provided  the  adoption  of  nine 
states  should  take  place  —  a  tract  four  times  as  large  as  old  Massachusetts, 
which  at  %\  per  acre  will  sink  $20,000,000  —  double  the  sum  of  unredeemed 
Continental  loan  office  certificates." 

The  writer  speaks  of  the  above  as  a  "  tribute  of  respect  to  the  new  confed- 
eracy:' 

Ibid.,  July  10,  1788,  is  published  a  song,  sung  on  the  occasion  of  a  proces- 
sion at  Portsmouth,  at  the  time  of  celebrating  the  adoption  of  the  constitution : 

IST  VERSE. 

"  It  comes  !  it  comes  !  high-raise  the  song, 
The  bright  procession  moves  along, 


From  pole  to  pole  resound  the  NINE, 
And  distant  worlds  the  chorus  join." 


Ibid.,  July  17,  1788.  "In  congress,  July  2,  1788.  The  state  of  New 
Hampshire,  having  ratified  the  constitution,  .  .  .  and  transmitted  to  congress 
.  .  .  the  same  .  .  .  the  president  reminded  congress  that  this  was  the  ninth 
ratification.  .  .  .  Whereupon  .  .  .  ordered,  that  the  ratification,  etc.,  be  re- 
ferred to  a  committee,  to  examine  and  report  an  act  for  putting  the  said  consti- 
tution into  operation,  in  pursuance  of  the  resolution  of  the  late  federal  conven- 
tion." 

Extract  from  a  letter  from  a  member  of  the  convention  at  Richmond,  to  his 
friend  in  Boston,  dated  June  25:  "I  have  now  to  congratulate  you  on  the 
accession  of  Virginia  to  the  new  government ;  the  final  vote  was  taken  this 
day,  about  3  o'clock  p.  M.  It  was  89  to  79.  A  motion  for  previous  amend- 
ment was  negatived  by  88  to  80.  The  form  of  ratification  is  prefixed  by  a 
declaration  that  all  power,  etc.,  (but  I  send  you  a  copy)."  He  then  speaks  of 
a  "discussion  of  twenty -four  days,  in  which  every  clause  of  the  plan  was 
weighed  and  debated." 


456  THE  UNION  OF   STATES. 

Ibid.,  Oct.  2,  1788.  In  this  number,  a  well-written  paper,  signed  "Alfred," 
"  on  the  new  federal  government,"  says :  "  It  requires  no  greater  share  of 
sagacity  than  the  world  gives  us  credit  for,  to  foresee  that  thirteen  or  more 
different  states,  possessing  separate  sovereignty  and  independence,  will  very 
soon,  as  their  numbers  multiply,  and  their  opulence  increases,  engage  in  civil 
broils  and  distressing  contentions."  He  afterward  speaks  of  the  federal  sys- 
tem as  "a  form  of  government  which  astonishes  the  political  schools  of  Europe, 
and  which,  with  a  few  amendments,  will  bestow  peace  and  political  security  to 
the  many  millions  for  whose  felicity  the  states  have  adopted  it." 

Ibid.,  Nov.  13,  1788.  In  the  general  court  of  Massachusetts,  Novem- 
ber 1,  "  the  committee  on  the  organization  of  the  new  government,"  whose 
duty  it  was  to  investigate  and  report  upon  the  mode  in  which  the  state,  and  the 
people  thereof,  were  to  perform  their  constitutional  functions  in  the  new 
system. 

The  matter  was  reported  on  as  follows  in  substance ;  these  recommendations 
to  be  provided  for  by  law  of  the  state  : 

1.  That  the  two  houses,  by  joint  ballot,  choose  the  electors  for  President  and 
Vice-President. 

2.  That  the  senators  be  chosen  by  the  two  houses,  each  having  a  negative 
on  the  other. 

3.  That  "  the  commonwealth  "  be  "  divided  into  eight  districts,  and  that  the 
inhabitants  of  each  should  be  authorized  to  choose  one  representative  to 
congress." 

The  above  shows  that  old  Massachusetts  contemplated  acting  in  the  federal 
system  solely  as  a  state  —  an  independent  sovereign ;  her  officers,  pro  hac  rice, 
being  delegates,  representatives,  and,  as  she  called  them  in  her  constitution, 
"  the  subjects  of  this  state."  The  federal  pact  itself,  calls  them  citizens  of  the 
state.  She  was  to  choose  from  among  her  own  citizens  and  subjects,  who  owed 
exclusive  allegiance  to  her,  and  obedience  to  her  "  supreme  law  "  —  the  federal 
pact  —  all  of  her  proportion  of  the  officers  of  the  three  departments  of  the  fed- 
eral agency,  except  such  subordinate  functionaries  as  should  be  provided  for  by 
federal  law  —  these  to  be  chosen  for  her,  and  her  federated  sisters,  from  among 
their  respective  subjects,  and  exclusively  by  their  authority. 

The  argument  made  by  this  long  series  of  extracts  from  the  principal  journal 
of  Massachusetts,  and  those  from  the  Worcester  Spy,  is  the  most  decisive  that 
could  be  framed,  for  it  shows  precisely  how  the  system  was  presented  and 
advocated ;  and  what  the  views  and  motives  of  the  people  were  in  adopting  it. 
This  argument  destroys,  without  remedy,  the  theory  of  Story  and  Webster,  for 
there  is,  in  the  whole  series,  (and  the  same  may  be  affirmed  of  the  federalist  and 
Elliott's  debates,)  no  sign  whatever  of  the  people  of  the  united  states,  as  a 
nation  or  great  political  community,  ordaining  a  constitution,  and  therein 
establishing  (to  use  Webster's  phraseology)  "  a  distribution  of  powers,  between 
this,  their  general  government,  and  their  several  state  governments;"  while 
on  the  other  hand,  it  is  proved,  beyond  controversy,  that  the  American  common- 
wealths of  people,  in  a  "  convention  of  states  "  (as  Hamilton  called  it),  framed 
the  plan ;  and  that  each  state  deliberated  on  it,  in  her  own  convention,  having 
the  absolute  right  to  ratify  or  reject ;  and  finally  that  each  state  adopted  it,  by 
vote,  as  a  political  body.  The  states,  then,  gave  it  all  the  life  and  force  it  ever 
had,  or  could  justifiably  have.  Nay,  more,  not  only  does  this  compact  of  states 
provide  for,  direct,  limit,  and  control,  the  federal  government,  but  this  said  agency 
is  personally  composed  of  men  who  are  alike  members,  citizens,  and  subjects,  of 
the  states ;  and  who  are  not  only  in  allegiance  exclusively  to  the  said  states, 
but  are  elected  by  them  to  administer  their  general  government  —  "  the  federal 
government  of  these  states,"  as  the  federal  convention  unanimously  called  it. 
These  states,  as  fully  organized  bodies  of  people  — each  one  having  every 


APPENDIX  A.    NO.  2.  457 

characteristic  of  a  nation  —  constituted  whatever  nation  there  is.  They  com- 
prised all  the  people,  and  held  all  the  territory,  leaving  out  of  their  jurisdiction 
not  an  acre  or  a  man  to  make  a  nation  of. 

The  state  and  the  federal  constitutions,  are  alike  the  fundamental  laws  of  the 
states  —  the  latter  being  their  "supreme  law."  Both  are  necessarily  subordinate 
to  the  law-makers.  A  federal  law  operates,  and  a  federal  functionary  has  juris- 
diction in,  any  state  —  New  York,  lor  instance  —  because  it  is  the  sovereign 
will  of  the  said  state,  it  being  with  her  authority,  that  the  federal  government 
exists  in  her  territory,  and  acts  on  her  citizens  or  subjects.  Strange  as  some 
may  think  it,  there  is  nothing  inconsistent  with  this  view,  in  the  records,  history, 
and  political  writings  of  the  country,  which  were  contemporaneous  with  the 
formation  of  our  federal  polity.  Everything  shows  the  independent  political 
action  of  the  states,  as  sovereign  bodies,  in  ordaining  and  establishing  the  con- 
stitution and  their  determination  to  preserve  their  sovereignty  in  the  union; 
while  not  even  a  syllable  shows  any  national  action.  The  states  are  self-united 
as  equals ;  they  as  self-associated  are  whatever  nation  there  is ;  and  the  phrases, 
"  united  states,"  and  "  union  of  states,"  so  often  repeated  in  the  federal  pact, 
make,  of  themselves,  an  end  of  all  honest  controversy  of  the  subject. 


NO.   2. 
THE  UNION  OF  STATES. 

Extracts  from  the  Virginia  Gazette,  published  at  Richmond,  from  May  31,  1787,  to 

February  26,  1789. 

[The  Virginia  Gazette,  May  31,  1787.] 

"  Baltimore,  May  11.  Returns  of  the  delegates  appointed  by  the  several 
states,  (Connecticut  and  Rhode  Island  except,)  to  meet  in  GENERAL  CONVEN- 
TION at  Philadelphia,  on  Monday  the  14th  inst.,  for  the  purpose  of  revising  the 
CONFEDERATION  of  the  United  States."  Then  follow  the  names. 

Ibid.,  June  14,  1787.  Richmond,  June  14.  We  expected  to  have  been 
able  to  entertain  our  readers  with  the  proceedings  of  the  federal  convention ; 
but  we  are  sorry  to  inform  them,  that  everything  is  carried  on  by  them  with 
greatest  secrecy.  We  learn  that  all  the  states  are  now  represented,  except 
New  Hampshire  and  Rhode  Island. 

[The  Virginia  Gazette,  June  21,  1787.] 

In  stating  the  purposes  of  the  great  political  movement,  says :  "  To  revise 
the  confederation,  and  to  fall  upon  a  system  of  commercial  regulations,  which 
may  tend  to  the  revival  and  establishment  of  our  credit,  and  the  encouragement 
of  our  trade  and  manufactures,  are  objects  of  such  magnitude,  as  to  require 
the  united  wisdom  of  the  continent."  .  .  .  And  "  to  render  the  constitution  of 
the  federal  government  adequate  to  the  exigencies  of  the  union,"  is  also  stated 
to  be  a  purpose. 

Ibid.,  August  9,  1787.  "  Richmond,  August  9.  On  the  26th  ult.,  the  fed- 
eral convention  having  resolved  upon  the  measures  necessary  to  discharge  their 
important  trust,  adjourned  till  Monday,  the  6th  inst.,  in  order  to  give  a  com- 


458 


THE  UNION  OF   STATES. 


mittee  appointed  for  that  purpose,  (viz.,  Mr.  Randolph  of  Virginia,  Mr. 
Gorham  of  Massachusetts,  Mr.  Ellsworth  of  Connecticut,  Mr.  Wilson  of 
Pennsylvania,  and  Mr.  Rutledge  of  South  Carolina,)  the  time  to  arrange  and 
systematize  the  materials  which  that  honorable  body  have  collected,"  etc. 

Ibid.,  Aug.  30,  1787.  "Richmond,  August  30.  The  convention,  we  are 
informed,  have  unanimously  agreed  on  a  system  for  the  future  government  of 
the  united  states,  which  will  be  speedily  laid  before  the  several  legislatures, 
for  their  acceptance  and  ratification.  What  that  system  is,  is  not  as  yet  known. 
...  A  correspondent  observes,  that,  as  there  is  so  much  frailty  in  human 
nature,  the  people  from  whom  all  power  is  derived  under  a  purely  republican 
system  of  government,  when  they  are  about  to  invest  man  with  power  and 
authority,  even  for  the  necessary  purposes  of  government,  [require]  that  it  be 
strictly  guarded  and  limited ;  so  that  it  be  not  abused  to  the  oppression  of 
those  who  conferred  it.  Hence,  from  neglect  or  inattention,  in  fixing  those 
essential  checks  and  restraints  on  rulers  and  governors  ;  it  is  that  we  behold 
in  the  world  so  small  a  portion  of  mankind,  who  are  not  tyrants,  or  slaves, 
oppressors,  or  oppressed." 

Ibid.,  Sept.  27,  1787.  This  number  contains  the  proposed  federal  constitu- 
tion, with  the  resolutions  concerning  the  mode  of  ratification  and  carrying  into 
effect ;  and  the  letter  of  General  Washington  to  the  President  of  congress,  sent 
by  unanimous  order  of  the  convention. 

Ibid.,  Oct.  4,  1787.  This  number  contains  a  petition  of  the  people  of  Phila- 
delphia and  suburbs,  to  the  general  assembly  of  Pennsylvania  as  follows : 

"That  the  petitioners  have  seen  the  proposed  constitution,  and  that  "as 
they  conceive  it  to  be  wisely  calculated  to  form  a  perfect  union  of  the  states, 
as  well  as  to  secure  to  themselves  and  posterity  the  blessings  of  peace,  liberty, 
and  safety,  they  earnestly  desire  that  the  said  constitution  may  be  adopted  as 
speedily  as  possible,  by  the  state  of  Pennsylvania,  in  the  manner  recommended 
by  the  convention." 

Ibid.,  Oct.  4,  1787.  This  number  presents  the  following  procedure  in  con- 
gress: 

"THE  UNITED  STATES  IN  CONGRESS  ASSEMBLED.  Friday,  September  28, 
1787.  Present:  New  Hampshire,  Mass.,  Conn.,  N.  Y.,  N.  J.,  Pa.,  Del,  Va., 
N.  C.,  S.  C.  and  Georgia ;  and  from  Maryland,  Mr.  Ross. 

"  Congress  having  received  the  report  of  the  convention,  lately  assembled  at 
Philadelphia,  Resolved  unanimously,  That  the  said  report,  with  the  resolutions 
and  letter  accompanying  the  same,  be  transmitted  to  the  several  legislatures, 
in  order  to  be  submitted  to  a  convention  of  delegates,  chosen  in  each  state,  by 
the  people  thereof,  in  conformity  to  the  resolves  of  the  convention,  made  and 
provided  in  that  case. 

"  CHARLES  THOMPSON,  Secretary, 

Ibid.,  Nov.  1, 1787.  This  number  states  that  the  house  of  delegates  of  Vir- 
ginia has  unanimously  voted  for  calling  a  convention,  to  consider  the  constitu- 
tion, and  that  the  matter  is  now  before  the  senate.  In  the  house  of  delegates 
"  the  only  question  seemed  to  be,  whether  the  convention  should  be  left  at 
large  to  propose  amendments  to  the  constitution,  in  case  they  should  deem  it 
advisable ;  and  after  a  short  debate,  it  was  agreed,  with  unanimity,  that  the 
convention  could  not  be  restrained,  in  the  discussion  of  this  momentous  busi- 
ness, from  accepting  or  rejecting  it,  or  proposing  amendments,  as  they  should 
see  fit.  ...  A  change  of  one  or  two  exceptionable,  or  doubtful  clauses ;  may 
be  made  to  the  advantage  of  all  the  states,"  etc. 


APPENDIX  A.    NO.  2.  459 

Ibid.,  Nov.  22,  1787.  A  Connecticut  correspondent  observes  that,  "having 
received  the  new  constitution  in  the  regular  channel,  we  have  .  .  .  taken  the 
proper  measures  for  calling  a  state  convention,  and  determining  upon  the  new 
plan  of  government." 

Ibid.,  Nov.  29,  1787.  It  is  stated  that,  "when  the  illustrious  Washington 
was  about  to  sign  the  constitution  as  president  of  the  convention,  he  paused 
with  pen  in  hand,  and  said :  '  Should  the  states  reject  this  excellent  constitution, 
the  probability  is  an  opportunity  will  never  again  offer  to  cancel  \f\  another  in 
peace:  the  next  will  be  drawn  in  blood'  " 

Ibid.,  Dec.  20,  1787.  The  first  ratification  of  the  federal  constitution  — 
that  by  Delaware — is  presented  in  this  number  thus  :  "Wilmington,  December 
12.  .  '.  .  The  new  Federal  constitution  was  ratified  by  unanimous  vote,  on 
Friday,  and  the  ratification  signed  by  every  member  as  follows : 

"  We  the  deputies  of  the  people  of  the  Delaware  state,  in  convention  met, 
having  taken  into  our  serious  consideration  the  federal  constitution,  proposed 
and  agreed  upon  by  the  deputies  of  the  united  states,  in  a  general  convention 
held  at  the  city  of  Philadelphia,  on  the  17th  of  September,  A.  D.,  1787,  HAVE 
approved,  assented  to,  ratified  and  confirmed,  and  by  these  presents  DO,  in 
virtue  of  the  power  and  authority  to  us  given  for  that  purpose,  for,  and  in  be- 
half of  ourselves  and  our  constituents,  fully,  freely  and  entirely  approve  of, 
assent  to,  ratify,  and  confirm  the  said  constitution. 

"  Done  in  convention,  the  seventh  day  of  December,  in  the  year  of  our  Lord 
one  thousand  seven  hundred  and  eighty-seven." 

The  editor  says  :  "  The  convention  agreed  to  cede  10  miles  square,  with  the 
right  of  exclusive  legislation,  to  congress  for  seat  of  government." 

He  also  says  that,  "  while  Delaware  acted  thus  speedily,  the  convention  of 
Pennsylvania  is  debating  the  ground  by  inches,  having  been  in  session  almost 
a  month,  and  being  yet  engaged  on  the  first  article." 

Ibid.,  Dec.  27,  1787.  Gives  an  account  of  a  meeting  of  the  inhabitants  of 
Pittsburg,  Pa.,  "  for  the  special  purpose  of  taking  the  sense  of  this  town  with 
respect  to  the  system  of  confederate  government,  proposed  by  the  late  conven- 
tion at  Philadelphia.  General  John  Gibson  in  the  chair." 

"  On  the  12th  instant,  the  federal  constitution  was  approved  of  by  the  state 
of  Pennsylvania,  by  a  majority  of  23  members." 

Ibid.,  Jan.  3,  1788.  "Boston,  Dec.  7.  The  disunited  states  of  America, 
at  this  all  important  crisis,  may  be  fitly  compared  to  13  distinct,  separate, 
independent,  unsupported  columns,  ...  the  glorious  frame  of  government 
for  the  united  states  presents  itself  to  view  —  the  columns  appear  with  addi- 
tional lustre ;  their  use  and  design  are  fully  understood ;  rising  from  their  solid 
pedestals,  they  receive  the  heaven-descended  DOME,  supporting  and  supported 
by  the  noble  structure." 

In  the  preamble  of  an  act  of  the  legislature  of  Virginia,  it  is  stated  that, 
"  the  proceedings  of  the  federal  convention  [are  to]  be  submitted  to  a  conven- 
tion of  the  people,  for  their  full  and  free  investigation,  discussion  and  decision." 

Ibid.,  Jan.  31,  1788.  "We  learn  that,  in  the  course  of  this  month 
the  states  of  New  Hampshire  and  Connecticut  have  adopted  the  proposed 
federal  constitution  —  the  latter  by  a  majority  of  127  votes.  Five  states  have 
now  ratified  the  federal  government,  viz :  Del.,  Pa.,  N.  J.,  Ct.,  and  N.  H." 
[It  was  then  a  mistake  as  to  the  last.  See  the  extract  from  the  number  for 
March  20,  infra.'] 

At  an  "  elegant  supper  "  of  the  federalists,  in  Carlisle,  Pa.,  (after  a  riot  by 
the  anti-federalists,  during  which  Chief  Justice  McKean  and  James  Wilson 
were  burned  in  efiigy,)  "the  following  toasts  were  drank  :  1.  The  federal  con- 


460  THE   UNION  OF   STATES. 

stitution;  2.  General  Washington  and  the  federal  constitution ;  3.  The  states 
who  acceded  to  the  federal  constitution ;  4.  A  speedy  accession  and  ratifica- 
tion of  the  constitution  by  all  the  states."  [Note  the  words  "  federal "  and 
"  accede."] 

Ibid.,  Feb.  14,  1788.  At  a  dinner  in  Richmond,  on  the  anniversary  of  Gen. 
Washington's  birthday,  one  of  the  toasts  was  :  "  The  congress  —  may  the  vir- 
tues of  the  first,  be  revived  by  the  adoption  of  a  happy  federal  constitution." 

"A  northern  paper  mentions  the  adoption  of  the  federal  constitution  by  the 
state  of  Georgia." 

[Virginia  Gazette,  Feb.  28,  1788.] 

Under  date  of  "  Boston,  February  4,"  is  given  the  ratification  by  the  state  of 
Massachusetts,  with  her  proposed  amendments  —  nine  in  number — the  first  being 
as  follows :  "  That  it  be  explicitly  declared  that,  all  powers  not  expressly  dele- 
gated to  congress,  are  reserved  to  the  several  states,  to  be  by  them  exercised." 

"  And  the  convention  do,  in  the  name  and  behalf  of  the  people  of  this  com- 
monwealth, enjoin  it  upon  their  representative  in  congress,  at  all  times,"  to 
urge  the  adoption  of  said  amendments. 

Says  the  editor :  "  With  the  highest  satisfaction  we  announce  to  the  public 
that,  the  convention  of  the  state  of  Massachusetts  adopted  the  new  constitution 
on  the  6th  instant,  by  a  majority  of  19  ;  187  yeas  — 168  nays. 

"The  legislature  of  South  Carolina  have  appointed  the  12th  of  May  next  for 
the  meeting  of  their  convention,  to  decide  on  the  new  federal  constitution." 

The  same  paper  presents  the  ratification  of  Georgia,  in  the  words  and  figures 
following : 

"Augusta,  January  5.  We  have  the  pleasure  to  announce  to  the  public 
that,  on  Wednesday  last,  the  convention  of  this  state  unanimously  ratified  the 
federal  constitution,  in  the  words  following,  viz : 

"  STATE  OF  GEORGIA,  IN  CONVENTION,  Wednesday,  January  2, 1788.  We 
the  delegates  of  the  people  of  the  state  of  Georgia,  in  convention  met,  having 
taken  into  our  serious  consideration  the  federal  constitution,  agreed  upon  and 
proposed  by  the  deputies  of  the  united  tstates  in  general  convention,"  etc., 
"  have  assented  to,  ratified,  and  adopted,  and  by  these  presents  do,  in  virtue  of 
the  powers  and  authority  to  us  given,  by  the  people  of  the  said  state  for  that 
purpose,  for,  and  in  behalf  of,  ourselves  and  constituents,  fully  and  entirely 
assent  to,  ratify  and  adopt  the  said  constitution,  which  is  hereunto  annexed 
under  the  great  seal  of  the  said  state.  DONE  in  convention,  at  Augusta,  in 
the  said  state,  January  2,  1788." 

Ibid.,  March  6, 1788.  Extract  from  letter  from  Charleston,  S.  C.,  January  22 : 
"  As  to  the  new  constitution,  I  hope  it  will  be  adopted  with  amendments  by 
this  state ;  but  the  opposition  is  heavy  and  increasing." 

Ibid.,  March  13,  1788.  "  We  shall  very  soon  reckon  South  Carolina  among 
the  members  of  the  new  confederacy." 

A  letter  from  Wilmington  contains  congratulations  "  on  the  ratification  of 
the  federal  constitution,  by  the  state  of  Massachusetts." 

A  Yankee  Doodle  song  winds  up  with  the  following : 

"  So  here  I  end  my  federal  song, 
Composed  of  thirteen  verses, 
May  agriculture  flourish  long, 
And  commerce  fill  our  purses. 
Yankee  doodle  keep  it  up 
Yankee  doodle  dandy ; 
Mind  the  music  and  the  step, 
And  with  the  girls  be  handy." 


APPENDIX  A.    NO.  2.  461 

Ibid.,  March  20,  1788.  Contains  advices  from  New  Hampshire,  showing 
that,  "as  in  the  convention  there  were  54  against  and  51  for  the  federal  con- 
stitution, an  adjournment  till  June  was  procured,  it  being  hoped  that  some  of 
the  40  towns  that  had  instructed  their  delegates  to  vote  against,  would  with- 
draw such  instructions ;  and  it  is  hoped  that  the  convention  at  the  session  will 
adopt  a  constitution,  so  replete  with  benefits  to  New  Hampshire,  as  well  as  the 
union  in  general." 

Ibid.,  April  3,  1788.  At  a  convention  begun  and  held  for  the  District  of 
Kentucky,  at  Danville,  Sept.  17,  1787,  it  was  resolved  that  this  convention 
fix  Dec.  31,  1788,  as  the  time  when  "  the  authority  of  the  commonwealth  of 
Virginia,  and  of  its  laws,  over  the  District  of  Kentucky,  shall  cease  and  deter- 
mine forever,  under  the  exception  specified  in  the  act  concerning  the  erection 
of  Kentucky  into  an  independent  state. 

"  Resolved,  as  the  opinion  of  this  convention,  that  the  convention  shall  be 
elected  with  full  power  and  authority  to  frame  and  establish  a  fundamental 
constitution  of  government  for  the  proposed  state,  and  to  declare  what  laws 
shall  be  in  force  therein,  until  the  same  be  abrogated,  or  altered  by  the  legisla- 
tive authority  acting  under  the  constitution  so  to  be  framed  and  established." 

Ibid.,  May  8,  1788.  A  correspondent,  writing  from  Annapolis,  Md.,  says 
that  "on  the  21st  instant,  the  convention  appointed  by  the  citizens  of  this 
state,  for  the  purpose  of  considering  the  constitution  proposed  by  the  general 
conventions,  for  the  government  of  the  united  states,  met  at  Annapolis.  .  .  . 
Maryland  *  has  opened  her  bosom  to  the  embraces  of  her  sister  states ;  has 
erected  the  seventh  pillar,  upon  which  will  be  reared  the  glorious  fabric  of 
American  greatness.  .  .  .  0  !  may  the  august  temple  of  freedom  soon  be  sup- 
ported by  13  pillars,  with  its  gates  unfolded  to  every  part  of  the  creation." 

A  committee  of  13  was  appointed  to  state  amendments,  which  the  conven- 
tion would  subsequently  recommend  to  the  people,  if  deemed  necessary.  The 
ratification,  however,  was  unoualified. 

The  first  was,  "  that  it  be  declared  that  all  persons  entrusted  with  the  legis- 
lative or  executive  powers  of  government,  are  the  trustees  and  servants  of  the 
public,  and,  as  such,  accountable  for  their  conduct :  Wherefore,  whenever  the 
ends  of  government  are  perverted,  and  public  liberty  manifestly  endangered, 
and  all  other  means  of  redress  are  ineffectual,  the  people  may,  and  of  right 
ought,  to  object  to,  reform  the  old,  or  establish  a  new  government,"  etc,  etc. 

The  18th  was,  that  "  congress  shall  exercise  no  power  but  what  is  expressly 
delegated  by  this  constitution." 

At  a  federal  procession,  the  following  toasts  were  drunk :  "...  4.  The 
seven  adopting  states  of  the  federal  constitution;  5.  A  speedy  ratification,  by 
the  remaining  six,  without  amendments." 

And  at  a  dinner  given  to  the  convention,  the  following  was  the  thirteenth 
toast :  "  May  all  the  states  of  America  join  heartily  in  adopting,  and  make 
effectual,  the  proposed  federal  government." 

Ibid.,  June  5,  1788.  This  number  contains  a  very  well  written  and  able 
address  —  copied  from  the  Pennsylvania  Gazette  —  to  the  members  of  the 
convention  of  Virginia.  [It  must  have  been  written  by  Tench  Coxe  —  though 
the  American  Museum  publishes  a  different  one,  addressed  as  above  —  James 
Wilson,  Judge  McKean,  or  some  other  leading  constitutionist.] 

He  speaks  of  the  "  determination,  which  is  to  call  the  American  union  once 
more  into  political  existence." 

Alluding  to  the  objection,  "that  your  populous  state  will  not  be  properly 
represented  in  the  federal  senate  "  he  says :  "  Permit  me  to  remind  you  that 
while  you  have  but  one  vote  of  thirteen  in  the  present  union,  you  will  have 
twelve  of  91  in  the  new  confederacy." 


462  THE  UNION  OF  STATES. 

Further  along,  taking  it  for  granted  the  nascent  state  of  Kentucky  will  act 
with  Virginia,  he  says:  "It  will  be  proper  to  consider  too,  the  effect  of  the 
erection  of  Kentucky  into  a  separate  state,  and  of  her  becoming  another  mem- 
ber of  the  new  confederacy." 

"  Should  the  present  attempt  to  infuse  new  vigor  into  the  general  govern- 
ment, fail  of  success,  partial  confederacies  must  at  once  follow." 

He  then  supposes  a  case  wherein  "  Virginia  rejects  the  proposed  constitution, 
and  Georgia,  South  Carolina,  and  Maryland,  are  members  of  the  new  confed- 
eracy." 

He  says  further,  Virginia,  "of  all  the  members  of  the  union,  has  the  least 
cause  of  complaint,"  and  speaks  of  the  prospect  of  Kentucky  becoming  "  an 
independent  member  of  the  American  union." 

[Virginia  Gazette,  June  12, 1788.] 

"  BALTIMORE,  June  3.  The  sloop  George,  Capt.  Chase,  which  carried  the 
account  of  the  ratification  of  the  federal  constitution  by  this  state,  to  South 
Carolina,  returned  on  Saturday,  and  brought  the  following  interesting  informa- 
tion :  '  On  the  23d  instant,  at  five  o'clock  in  the  evening,  the  question  was  put, 
that  the  convention  assent  to,  and  ratify,  the  federal  constitution  —  for  the 
united  states  of  America,  upon  which  the  vote  stood  as  follows :  For  the  ratifi- 
cation 149  —  against  73  —  majority  76.'  " 

"  There  was  a  discharge  of  artillery  from  FEDERAL  HILL,  on  Saturday  even- 
ing, at  5  O'clock,  IN  HONOR  OF  THE  STATE  OF  SOUTH  CAROLINA." 

"  A  number  of  gentlemen  convened  at  Grant's  tavern,"  and  drank  the  follow- 
ing among  other  toasts :  "  1.  The  state  of  South  Carolina ;  2.  The  South 
Carolina  convention;  3.  Our  sister  Virginia  —  may  she  soon  complete  the 
arch  of  the  grand  federal  building ;  4.  May  the  noble  spirits  of  the  minorities 
of  the  conventions  of  Massachusetts  and  South  Carolina,  be  imitated  by  the 
opposers  of  the  federal  constitution,"  etc. 

The  same  number  says  that,  "  the  beautiful  little  ship  Federalist  [the  same 
that  had  in  a  recent  procession  been  manned  by  13  men ;  drawn  by  13  horses, 
and  saluted  by  13  guns]  .  .  .  sailed  for  Mount  Vernon  !  Capt.  Barney  has  the 
honor  to  present  her  to  the  illustrious  farmer,  who  owns  that  spot,  as  an  offer- 
ing from  the  merchants,  expressive  of  their  veneration  of  his  services  and 
federalism." 

Ibid.,  June  19,  1788.  The  editor  copies  from  a  Philadelphia  paper  the 
following  extract  from  a  letter :  "  New  Hampshire  is  well  disposed,  and  will 
have  her  convention  but  a  few  days  in  session  before  she  ratifies." 

He  also  copies  some  interesting  observations  and  reflections  from  a  New 
York  writer  —  the  following  being  apropos:  ".  .  .  our  warmest  friends  and  pa- 
triots, having  been  instrumental  to  our  independence,  are  endeavoring,  .  . 
by  the  adoption  of  a  new  system  of  government,  to  place  these  thirteen  stat 
upon  a  broad  and  lasting  foundation,  that  shall  stand  the  shocks  of  time,  diffu 
the  blessings  of  free  and  universal  trade,  command  respect  and  homage  from 
the  surrounding  world,  and  transmit  to  posterity,  unimpaired,  those 
rights  unto  which  themselves  were  born." 

The  paper  also  announces  the  arrival  of  "  the  ship  Federalist  at  Mount  Ver- 
non, on  Sunday  evening,  the  3d  instant,"  and  her  being  "  saluted  with  eight 
guns,  being  one  for  every  adopting  state." 

The  Virginia  convention  is  reported  to  be  closely  investigating  the  constitu- 
tion; and  it  is  said  that  "their  constituents  and  posterity  will  applaud ^ the 
assiduity  and  attention  they  have  shown  to  this  interesting  subject.  They 
have  now  arrived  to  the  article  respecting  the  executive.  It  is  yet  impossible 
to  determine  on  which  side  the  majority  will  be." 


APPENDIX  A.    NO.  2.  463 

The  same  paper  contains  the  ratification  of  South  Carolina ;  the  amendments 
proposed  by  her — seconding  Massachusetts;  her  federal  procession,  dinner 
alfresco,  etc,  etc. 

The  ratification  is  as  follows  : 

"  In  convention  of  the  people  of  the  state  of  South  Carolina,  by  their  repre- 
sentatives held  in  the  city  of  Charleston  [from  the  12th  to  the  23d  of  May,  1788J. 

The  convention,  having  maturely  considered  the  constitution,  or  form  of 
government,  reported  to  Congress  by  the  convention  of  delegates  from  the 
united  states  of  America,  and  submitted  to  them  by  a  resolution  of  the  legisla- 
ture of  this  state,  passed  the  17th  and  18th  days  of  February  last,  in  order  to 
form  a  more  perfect  union,  establish  justice,  ensure  domestic  tranquillity,  pro- 
vide for  the  common  defence,  promote  the  general  welfare  and  secure  the 
blessings  of  liberty  to  the  people  of  the  said  united  states  and  their  posterity, 
DO,  in  the  name  and  behalf  of  the  people  of  this  state,  hereby  assent  to  and 
ratify  the  said  constitution.  Done  in  convention,  the  23d  of  May,  A.  D.,  1788, 
and  of  the  independence  of  the  united  states  of  America,  the  twelfth. 

THOMAS  PINCKNEY,     [L.  s.J 

ATTEST  :          JOHN  S.  DART,     [L.  s.]  President. 

Secretary. 

The  convention  also  declared  formally  that,  "  it  is  essential  to  the  preserva- 
tion of  the  rights  reserved  to  the  several  states,  and  the  freedom  of  the  people 
under  the  operations  of  a  general  government,  that  the  right  of  prescribing  the 
time,  place  and  manner  of  holding  their  elections  to  the  federal  legislature, 
should  be  forever  inseparably  annexed  to  the  sovereignty  of  the  several 
states,"  except  —  the  declaration  goes  on  to  say  —  where  the  state  legislature 
shall  neglect  to  perform  the  same,  according  to  the  tenor  of  the  federal  consti- 
tution, the  federal  government  may  interfere  as  authorized  therein :  —  this  of 
course  would  be  by  virtue  of  the  state's  authority. 

"This  convention  doth  also  declare  that  no  section,  or  paragraph,  of  the 
said  constitution  warrants  a  construction  that  the  states  do  not  retain  every 
power  not  expressly  relinquished  by  them,  and  vested  in  the  general  govern- 
ment of  the  union." 

"Resolved,  that  it  be  a  standing  instruction  to  all  such  delegates  as  may 
hereafter  be  elected  to  represent  this  state  in  the  general  government,  to  exert 
their  utmost  abilities  and  influence  to  effect  an  alteration  of  the  constitution 
conformable  to  the  aforegoing  resolutions." 

[Virginia  Gazette,  June  26, 1788.] 

It  is  announced  that,  "yesterday  the  grand  question  came  on  before  the 
Honorable,  the  convention  of  this  state,  fgr  the  ratification  of  the  federal  con- 
stitution," and  that  the  vote  was  89  for,  and  79  against  ratification,  also  that 
17  or  18  members  were  appointed  a  committee  to  prepare  amendments  to 
recommend  for  future  adoption. 

Ibid.,  July  3, 1788.  In  this  number  is  printed  the  act  of  ratification  of  Vir- 
ginia, also  20  articles  for  a  bill  of  rights,  and  21  amendments  which  the  con- 
vention desired  should  be  added  to  the  federal  constitution  —  they,  "  in  the 
name  and  behalf  of  the  people  of  this  commonwealth,"  enjoining  it  upon  all 
representatives  in  congress  to  exert  themselves  continually  to  have  them  ratified, 
arid  to  conform  to  the  spirit  of  them,  as  far  as  the  federal  constitution  would 
allow,  in  all  laws  that  might  be  meanwhile  passed. 

The  first  amendment  proposed  by  Virginia  is  the  same  that  Massachusetts 
originated,  viz  :  "  That  each  state  in  the  union  shall  respectively  retain  every 


464  THE   UNION  OF  STATES. 

power,  jurisdiction,  and  right  which  is  not  by  this  constitution  delegated  to 
the  congress  of  the  united  states,  or  to  the  departments  of  the  federal  govern- 
ment." 

The  act  of  ratification  is  as  follows : 

"  VIRGINIA,  to-wit :  We  the  delegates  of  the  people  of  Virginia,  duly  elected 
in  pursuance  of  a  recommendation  from  the  general  assembly,  and  now  met  in 
convention,  having  fully  and  freely  investigated  and  discussed  the  proceedings 
of  the  federal  convention,  and  being  prepared  as  well  as  the  most  mature 
deliberation  hath  enabled  us,  to  decide  thereon,  DO,  in  the  name  and  behalf  of 
the  people  of  Virginia,  declare  and  make  known  that  these  powers  granted 
under  the  constitution,  being  derived  from  the  people  of  the  united  states,  may 
be  resumed  by  them,  whensoever  the  same  shall  be  perverted  to  their  injury, 
or  oppression,  and  that  every  power  not  granted  thereby  remains  with  them 
and  with  their  will :  That,  therefore,  no  right  of  any  denomination  can  be  can- 
celled,  abridged,  restrained,  or  modified  by  the  congress,  by  the  senate,  or 
house  of  representatives,  acting  in  any  capacity,  by  the  president,  or  any 
department,  or  officer  of  the  united  states,  except  in  those  instances  in  which 
power  is  given  by  the  constitution  for  those  purposes.  That  among  other 
essential  rights,  the  liberty  of  conscience  and  of  the  press  cannot  be  cancelled, 
abridged,  restrained  or  modified  by  any  authority  of  the  united  states. 

"  With  these  impressions,  with  a  solemn  appeal  to  the  Searcher  of  hearts  for 
the  purity  of  our  intentions,  and  under  the  conviction  that,  whatever  imper- 
fections may  exist  in  the  constitution,  ought  rather  to  be  examined  in  the  mode 
prescribed  therein,  than  to  bring  the  union  into  danger,  by  a  delay,  with  a  hope 
of  obtaining  amendments  previous  to  the  ratification  :  — 

"  We,  the  said  delegates,  in  the  name  and  in  behalf  of  the  people  of  Virginia, 
do  by  these  presents,  assent  to,  and  ratify  the  said  constitution,  recommended 
on  the  17th  day  of  September,  1787,  by  the  federal  convention,  for  the  govern- 
ment of  the  united  states ;  hereby  announcing  to  all  those  whom  it  may  concern, 
that  the  said  constitution  is  binding  on  the  said  PEOPLE." 

In  the  same  number  is  the  following  extract  from  a  letter  from  New  Hamp- 
shire, dated  June  21,  1788  :  "  I  have  the  great  pleasure  of  informing  you  that 
this  state  has  this  day  adopted  the  federal  constitution :  This  important  ques- 
tion was  carried  by  a  majority  of  eleven  —  ayes  57  —  nays  46." 

Ibid.,  July  24,  1788.  A  letter  from  London  speaks  of  "the  constitution 
agreed  on  by  the  convention,  and  proposed  to  the  states  for  their  acceptance 
and  ratification ;  "  and  the  hope  is  expressed  that  as  everything  is  devised  "  for 
securing  their  liberties,  for  the  establishment  of  the  public  credit,  and  for  pro- 
moting the  peace  and  harmony  of  the  states  .  .  .  none  will  be  so  wanting  as 
to  reject  a  code  which  appears  so  fraught  with  every  blessing." 

In  the  news  from  Boston  is  an  item  about  Providence  and  Newport,  E..  I., 
celebrating  "  the  ratification  of  the  constitution  by  New  Hampshire."  In  the 
former  several  salutes  were  fired  on 'Federal  Hill,  and  the  college  boys  "named 
the  beautiful  green  around  the  college,  FEDERAL  PARADE." 

In  the  same  number,  is  a  long  report  of  the  proceedings  in  the  convention 
of  New  York,  Jay,  Hamilton,  Duane,  Livingston,  and  others,  debating. 

In  the  course  of  the  report  it  is  stated  that,  in  the  afternoon  a  considerable 
number  of  the  federalists  had  a  meeting  "  to  congratulate  each  other  on  the 
happy  news  from  Virginia ; "  and  "  they  fired  ten  cannon  in  honor  of  the  ten 
adopting  states." 

The  ratification  of  Virginia  seemed  to  have  a  favorable  influence  :  "  The 
spirit  of  warm  contention"  "between  the  parties  in  the  convention"  seemed 
to  subside,  and  it  is  stated  that  "  the  convention  are  now  framing  their  objec- 
tions to  the  constitution  for  amendments ;  it  is  supposed  they  will  be  similar 
to  those  of  Virginia." 


APPENDIX  A.    NO.  2.  465 

It  is  further  stated  that,  accounts  from  New  York  indicate  "that  the 
final  question  was  to  have  been  taken  in  the  honorable  convention  yes- 
terday," and  that  "the  constitution  would  be  carried  in  the  same  mode  as  by 
Virginia." 

In  the  same  number  is  a  letter  dated  July  7,  1788,  from  a  country  girl  in 
Philadelphia,  to  her  sister  in  Reading,  in  which  she  speaks  of  a  procession  she 
witnessed :  "...  Then  came  several  arm  in  arm,  bearing  flags  with  Delaware, 
Ya.,  S.  C.,  Conn.,  etc.,  painted  in  large  letters  on  them  —  signifying  the  pro- 
priety of  union  among  us ;  of  which  I  cannot  understand  the  meaning,  as  we 
were  all  united  before,  and  this  may  tend  to  disunite  us." 

A  letter  from  N.  Y.,  July  14,  says  :  "  The  last  accounts  from  our  convention 
are  unfavorable.  ...  I  fear  their  mode  of  (what  they  call  an)  adoption  will 
amount  to  a  rejection.  Should  they  reject,  commotions  will  ensue." 


[Virginia  Gazette,  July  31,  1788.] 

A  letter  from  Poughkeepsie,  dated  July  11,  says :  "  This  morning  Mr.  Jay 
brought  forward  the  grand  question,  by  a  resolution  for  adopting  the  constitu- 
tion. He  spoke  forcibly  and  commanded  great  attention.  .  .  .  The  Chancellor 
also  spoke.  .  .  .  Our  worthy  chief  justice;  also  Mr.  Smith,  Mr.  Lansing,  and 
the  governor,  spoke  against  the  resolution;  and  from  what  fell  from  them, 
they  seem  determined  to  support  a  conditional  adoption.  This  the  feder- 
alists consider  a  rejection  unaer  another  name,  and  no  doubt  will  protest 
against  it." 

Ibid.,  Aug.  7,  1788.  "NEW  YORK,  July  12.  From  the  Independent 
Journal  Extraordinary,  New  York,  Monday,  July  28,  1788.  On  Saturday 
evening,  about  nine  o'clock,  arrived  the  joyful  tidings  of  the  adoption  of  the 
new  constitution,  .  .  .  yeas  30,  nays  25  —  majority  5."  [This  is  a  mistake  — 
the  vote  was  30  to  27,  majority  3.]  The  account  goes  on  to  state  that  bells 
were  rung  and  guns  fired.  The  "  federal  ship  Hamilton "  fired  a  salute ; 
general  joy  prevailed  and  several  malcontents  "drank  freely  of  the  federal 
bowl,"  and  declared  themselves  "  reconciled  to  the  new  constitution." 

The  same  number  contains  a  letter  from  Providence  which  says:  "The  op- 
posers  of  the  new  constitution  in  this  state  feel  beaten  and  are  bitter."  .  .  .  The 
writer  further  says  that,  though  the  people  of  Providence  "  have  not  celebrated 
the  ratification  of  the  constitution  by  ten  states,  .  .  .  yet  there  is  no  town  on 
the  Continent  whose  inhabitants  are  more  universally  federal,"  etc. 

Ibid.,  Aug.  14,  1788.  "  Ratification  of  the  constitution  by  the  convention  of 
the  state  of  New  York. 

"  We,  the  delegates  of  the  people  of  the  state  of  New  York,  duly  elected  and 
met  in  convention,  having  maturely  considered  the  constitution  for  the  united 
states  of  America  ...  in  the  name  and  in  the  behalf  of  the  people  of  the  state 
of  New  York,  do,  by  these  presents,  assent  to,  and  ratify  the  said  constitu- 
tion." 

Ibid.,  Aug.  28,  1788.  "A  Petersburg  paper  says  the  convention  of  the 
state  of  North  Carolina  have  not  actually  rejected  the  constitution,  but  have 
proposed  a  bill  of  rights  and  amendments,"  intending  to  adopt  when  the  amend- 
ments should  be  made  ;  all  of  which  was  agreed  to  by  a  majority  of  102  —  yeas 
184,  nays  82.  The  opinion  of  the  convention  is  "  that  congress  will  call  a 
general  convention  to  consider  proposed  amendments,"  and  that  they  "  will  be 
submitted  to  conventions  in  the  several  states."  "The  convention  showed 
every  disposition  to  promote  the  interest  of  the  union,  .  .  .  and,  perceiving 
exceptions  in  the  new  constitution,  they  thought  themselves  justifiable  in  post- 


466  THE  UNION  OF  STATES. 

poning  the  ultimate  decision  of  the  important  question  until  it  should  be  recon- 
sidered by  the  several  states,  and  such  objections  removed  as  might  be  found 
necessary  to  the  preservation  of  the  union." 

Ibid.,  Sept.  4,  1788.     This  number  contains  the  following: 

"STATE  OF  NORTH  CAROLINA. 

"  In  CONVENTION,  Aug.  2, 1788.  Resolved  that  a  declaration  of  right  s,  assert- 
ing and  securing  from  encroachment  the  great  principles  of  civil  and  religious 
liberty,  and  the  unalienable  rights  of  the  people,  together  with  amendments  to 
the  most  ambiguous  and  exceptionable  parts  of  the  said  constitution  of  govern- 
ment, ought  to  be  laid  before  congress,  or  the  convention  of  the  states  that 
shall,  or  may  be  called  for  the  purpose  of  amending  the  said  constitution,  for 
their  consideration,  previous  to  the  ratification  of  the  constitution  aforesaid,  on 
the  part  of  the  state  of  North  Carolina." 

There  are  20  declarations  of  right  and  26  amendments  proposed.  The  first 
amendment  is  as  follows  :  "  That  each  state  in  the  union  shall  respectively 
retain  every  power,  jurisdiction  and  right,  which  is  not,  by  this  constitution, 
delegated  to  the  congress  of  the  united  states,  or  to  the  departments  of  the 
federal  government." 

Ibid.,  Sept.  18,  1788.  A  letter  of  a  correspondent  of  a  Philadelphia  paper 
asks  as  follows:  "Why  have  not  congress  complied  with  the  recommendation 
of  the  federal  convention  in  organizing  the  new  government,  when  adopted 
by  NINE  states  ?  The  plan  proposed  by  that  august  body,  has  been  re-echoed 
by  eleven  states,  a  considerable  while  since,  yet,  strange  to  tell !  (in  a  repub- 
lican government)  the  great  voice  of  the  people  has  not  been  respected  by  our 
rulers." 

The  same  number  contains  an  able  article,  signed  "  Solon,  Jr.,"  from  the 
Providence  Gazette : 

"...  Many  of  the  people,  and  some  respectable  states  in  the  union,  think 
the  new  constitution  needs  amendments.  The  ratification  of  it  by  the  state  of 
New  York,  bears  a  singular  complexion,  and  North  Carolina  has  refused  to 
ratify  it."  He  then  says,  the  making  of  these  amendments  "must  be  done  by 
the  states  under  the  old  confederation,  or  as  an  operation  of  the  new  constitu- 
tion. Eleven  states  having  ratified  the  constitution  unconditionally,  it  is  not 
likely  that  they  will  so  far  recede  from  that  measure,  as  to  humor  the  remain- 
ing two  states,  in  holding  a  convention  under  the  old  confederation." 

Ibid.,  Oct.  9,  1788.  Extract  from  the  letter  of  a  gentleman  in  London, 
dated  July  26, 1788  :  "  I  suppose  before  this  time,  nine  states  at  least  will  have 
adopted  the  new  constitution." 

Ibid.,  Nov.  6,  1788.  "The  general  assembly  [of  Virginia]  have  taken 
measures  to  organize  the  new  government.  They  have  resolved  to  lay  off  the 
state  into  districts,"  each  to  "  appoint "  a  representative.  "  Saturday  next  the 
senators  are  to  be  elected."  It  is  also  stated  that  the  house  of  delegates,  by  a 
great  majority,  resolved  that  "  an  application  be  made  to  the  congress  of  the 
new  government  to  call  a  convention  of  the  states  to  take  into  their  considera- 
tion the  defects  of  the  new  constitution." 

Ibid.,  Nov.  13,  1788.  "A  bill  has  passed  the  house  of  delegates,  for 
laying  off  the  commonwealth  into  twelve  districts,  for  the  choice  of  electors  to 
elect  the  president  of  the  national  government." 

"  The  honorable  Richard  Henry  Lee  and  William  Grayson,  esquires,  were 
elected  members  of  the  senate  from  this  state." 


APPENDIX  A.    NO.  3.  467 


[Virginia  Gazette,  December  4,  1788.] 

The  Newport  Herald  says  a  motion  was  made  in  the  general  assembly  of 
Rhode  Island,  "  for  the  appointment  of  a  convention  to  consider  the  proposed 
constitution."  The  motion  was  lost  by  40  navs  to  14  yeas. 

"  It  appears/'  savs  the  editor,  "  that  the  legislature  are  determined  to  hazard 
the  consequences  of  a  separation  from  the  union." 

Ibid.,  Dec.  25,  1788.  A  late  London  paper  is  quoted  as  follows  :  "  By 
the  last  account  seven  of  the  states  had  acceded  to  the  plan ;  ...  no  doubt  is 
entertained  of  the  concurrence  of  South  Carolina  and  Virginia.  The  congress 
will  soon  perfect  the  constitution  of  the  confederated  republic." 

Charles  Carroll  (of  Carrollton)  and  John  Henry  are  —  so  the  editor  says  — 
elected  "  SENATORS  in  the  new  CONGRESS  "  from  Maryland. 

Ibid.,  Feb.  5,  1789.  The  editor  says  New  York,  for  some  reason,  "will 
have  no  agency  in  the  choice  of  those  important  officers,  the  president  and  vice- 
president  ;  nor  will  she  be  represented  in  that  body  where  her  most  important 
interests  will  be  at  stake,  the  senate  of  the  united  states." 

"  Yesterday  10  of  the  electors  of  this  state  met  at  the  capitol  for  the  purpose 
of  electing  a  president  and  vice-president ;  the  ballots  stood  as  follows  : 

"  Gen.  Washington,  president,  10 ;  John  Adams,  vice-president,  5 ;  Henry 
Clinton,  vice-president,  3 ;  John  Hancock,  vice-president,  1 ;  John  Jay,  vice- 
president,  1. 

"  The  following  gentlemen  are  elected  representatives  in  the  congress  of  the 
united  states  for  this  state,  viz  :  John  Pa^e,  James  Madison,  Jr.,  Samuel 
Griffin,  Theodorick  Bland,  Andrew  Moore,  Alexander  White  and  Richard  B. 
Lee,  esquires." 

Ibid.,  Feb.  19,  1789.  "A  gentleman  in  Georgia  thus  writes  to  a  friend  in 
Rhode  Island :  'Our  old  state  constitution,  which,  like  that  of  Pennsylvania, 
has  a  single  house  of  assembly,  is  found  so  defective,  that  a  convention  to 
frame  a  new  one  is  ordered.  Our  present  ideas  are  that,  the  new  one  shall  be 
nearly  similar  to  the  new  federal  constitution.  I  am  sorry  to  hear  that  your 
state  still  continues  averse  to  the  new  government  ? ' " 

Ibid.,  Eeb.  26,  1789.  "  Philadelphia,  Feb.  6.  The  ten  federal  electors 
chosen  by  this  state,  gave  ten  votes  for  Gen.  Washington,  as  president,  and 
eight  for  Hon.  John  Adams,  as  vice-president." 


No.  3. 
THE  UNION  OF  STATES. 

Extracts  from  the  American  Museum,  from  January,  1787,  to  July,  1789. 

The  American  Museum,  or  Repository  of  Ancient  and  modern  fugitive  pieces. 
Matthew  Carey.     Philadelphia :  Carey,  Stewart  &  Co. 

This  plan  of  preserving  valuable  papers,  etc.,  was  that  of  Dr.  Franklin.     It 
was  also  highly  approved  by  Gen. Washington. 

[American  Museum,  January,  1787.] 

In  an  address  to  the  people  of  the  United  States,  by  Benjamin  Rush,  M.  D., 
"  to  suggest  the  defects  of  the  Confederation  "  he  says :  "  they  consist  1st,  In 


468  THE  UNION  OF  STATES. 

the  defect  of  coercive  powers  ;  3d,  In  the  defect  of  an  exclusive  power  to  issue 
paper  money  and  regulate  commerce ;  3d,  In  vesting  the  sovereign  power  of 
the  United  States  in  a  single  legislature ;  and  4th,  In  the  too  frequent  rotation 
of  its  members." 

As  to  the  3d  he  says :  "  To  remedy  this,  let  the  supreme  federal  power  be 
divided,  like  the  legislatures  of  most  of  our  States,  into  two  distinct  independent 
branches.  Let  one  of  them  be  styled  the  council  of  the  States,  and  the  other 
the  assembly  of  the  States.  Let  the  first  consist  of  a  single  delegate,  and  the 
2d  of  2,  3,  or  4  delegates,  chosen  annually  by  each  State.  Let  the  President 
be  chosen  annually  by  joint  ballot  of  both  houses." 

He  continues :  "  The  people  of  America  have  mistaken  the  meaning  of  the 
word  sovereignty.  Hence,  each  State  pretends  to  be  sovereign.  In  Europe,  it 
is  applied  only  to  those  States  which  possess  the  power  of  making  war  and 
peace,  of  forming  treaties  and  the  like.  As  this  power  belongs  only  to  Con- 
gress, they  are  the  only  sovereign  power  in  the  United  States,"  [the  above  is  a 
specimen  of  the  error  of  some  few  men  of  that  day.  Rufus  King  was  one  of 
them.  They  seemed  to  forget  that  all  the  States  just  then  declared  themselves 
to  be  each  sovereign,  and  that  the  Congress  only  had  power  delegated  from  the 
States  —  and  was  thus  an  agency]. 

He  continues :  "  We  commit  a  similar  mistake  in  our  ideas  of  the  word 
independent.  No  individual  State  as  such  has  any  claim  to  independence. 
She  is  independent  only  in  a  union  with  her  sister  States  in  Congress."  [That 
union  was  voluntary,  and  there  was  no  power  above  a  State  to  force  it  to  re- 
main. She  was  as  free  and  independent  in  the  union  as  out  —  as  she  was  only 
bound  by  her  own  will ;  the  union  being  a  voluntary  one.  Dr.  Rush  was  then 
great  in  his  profession,  but  not  so  great  in  statesmanship.  He  took  a  correct 
view  after  its  adoption.  See  his  letter  to  Dr.  Ramsey,  in  the  American 
Museum  for  May,  1788,  post  p.  45.] 

Observations  on  the  propriety  of  investing  Congress  with  power  to,  regulate  the 
trade  of  the  United  States.  By  William  Barton,  Esq.  American  Museum 
for  January,  1787. 

"  If  on  the  one  hand,  this  measure  should  be  found  to  encroach  too  far  on 
the  sovereignty  and  rights  of  the  several  states,  individually,  there  can  be  no 
doubt  that  it  ought  to  oe  rejected.  But  if,  on  the  other  hand,  nothing  of  that 
kind  is  to  be  apprehended,  and  it  can  be  made  evident  that  it  would  be  attended 
with  the  happiest  consequences  to  every  State  in  the  union,  we  may 'conclude 
that  none  but  persons  inimical  to  us,  or  contracted  speculative  politicians  will 
give  any  opposition.  .  .  . 

" .  .  .  Every  State  is,  with  respect  to  its  own  police,  distinctly  considered 
free,  sovereign  and  independent,  and  as  a  component  part  of  the  United  States, 
is  also  free,  sovereign  and  independent,  as  the  united  states  of  America  form 
one  grand  entire  republic,  composed  of  a  number  of  small  ones,  confederated 
for  their  common  safety  and  advantage,  ...  the  supreme  sovereign  authority 
of  the  whole,  ought  most  undoubtedly  to  be  lodged  in  Congress;  and  that 
body  should  possess  such  powers  and  privileges,  not  incompatible  with  the 
happiness  of  a  free  people,  as  usually  appertain  to  sovereignty,  in  order  to 
enable  them  to  direct  the  common  concerns  of  the  united  states  upon  UNIFORM 
principles,  so  as  to  afford  EQUAL  advantages  to  each,  and  give  energy  to  the 
whole.  .  .  . 

"  As  the  UNITED  STATES  only,  are  we  politically  known  to  other  powers ;  as 
such  we  send  and  receive  ambassadors,  enter  into  treaties  and  alliances,  declare 
war,  proclaim  peace,  etc.,  etc.  These  and  others  of  equal  importance,  are 
powers  with  which  we  have  invested  the  united  states  in  congress  assembled ; 


APPENDIX  A.    NO.  3.  469 

and  yet  it  is  said  that  to  allow  that  delegated  body  a  right  to  regulate  the 
TRADE  of  the  united  states,  is  too  great  a  power  to  be  entrusted  to  them.5* 

Ibid.,  for  April,  1787. 

A  distinguished  and  able  writer,  Dr.  Price,  says  :  "  Without  doubt  the 
powers  of  congress  must  be  enlarged.  In  particular,  a  power  must  be  given  it 
to  collect  on  certain  emergencies  the  force  of  the  confederacy,  and  to  employ 
it  in  carrying;  its  decisions  into  execution.  A  state  against  which  a  decision  is 
made,  will  yield  of  course,  when  it  knows  that  such  a  force  exists,  and  that 
it  allows  no  hope  from  resistance." 

Same  writer  says :  "  The  credit  of  the  united  states,  their  strength,  their 
respectableness  abroad,  their  liberty  at  home,  and  even  their  existence  depend, 
on  the  preservation  of  a  firm  political  union :  and  such  an  union  cannot  be 
preserved  without  giving  all  possible  weight  and  energy  to  that  delegation 
which  constitutes  the  union." 

Extract  from  the  address  of  the  convention,  held  at  Annapolis  :  of  "  the 
commissioners  from  the  said  states  [of  Virginia,  Delaware,  Pennsylvania,  New 
Jersey  and  New  York],  Commissioners  were  also  appointed  by  New  Hamp- 
shire, Massachusetts,  Rhode  Island,  and  North  Carolina,  but  they  did  not 
attend.  None  appointed  by  Connecticut,  Maryland,  South  Carolina,  or 
Georgia."  They  recommend  the  convention  at  Philadelphia,  2d  Monday  in  May 
next,  "  to  take  into  consideration  the  situation  of  the  united  states,  to  devise 
such  further  provisions  as  shall  appear  to  them  necessary  to  render  the  consti- 
tution of  the  federal  government  adequate  to  the  exigencies  of  the  union,  and 
to  report  such  an  act,  for  that  purpose,  to  the  United  States,  in  Congress 
assembled,  as  when  agreed  to  by  them,  and  afterwards  confirmed  by  the  legisla- 
ture of  every  state,  will  effectually  provide  for  the  same." 

t 

Extract  from  ait  able  paper,  entitled  "  a  view  of  the  federal  government  of 
America  ;  its  defects  and  a  proposed  remedy"  by  "  a  Bostonian." 

The  writer  says  "  there  are  three  grand  immutable  principles  of  a  good  gov- 
ernment," "  the  legislative,  the  judicial  and  the  executive.  What  ciphers  those 
legislators  must  be,  who  cannot  bring  their  own  laws  into  judicial  operation, 
and  how  trifling  are  those  decisions  which  cannot  be  enforced." 

After  illustrating  the  defect  of  the  federal  government,  from  wanting  judicial 
and  executive  authority  to  effectuate  its  acts,  he  says :  "  Let  us  then  strengthen 
our  federal  government ;  let  it  be  possessed  of  the  three  principles  in  full 
extent ;  and  let  us  condition,  that  congress  shall  exercise  due  authority  over 
themselves:  legislative,  judicial  and  executive  powers  may  be  given  to  that 
body  without  endangering  the  liberty  of  the  subject,  since  by  a  right  of  recall, 
the  states  can  dissolve  this  authority  the  moment  it  is  abused :  but,  where 
legislators  in  due  rotation  are  governors,  and  subjects,  there  seems  little  danger 
of  such  abuse.  .  .  . 

"  By  giving  a  supreme  executive  power  to  congress  in  all  cases  which  relate 
to  the  general  good,  we  should  only  give  that  power  to  ourselves ;  for  the  in- 
dividuals of  the  united  states,  sit  there  in  the  persons  of  their  delegates,  who 
instead  of  masters,  are  honorable  servants,  dependent  on  the  approbation, 
though  supported  by  the  confidence,  of  their  constituents. 

"  It  is  an  adopted  maxim  throughout  America,  that  none  of  the  states  can  be 
separately  governed  without  a  due  exercise  of  legislative,  judicial,  and  execu- 
tive authority.  How  then  can  it  be  expected  that  all  should  be  governed 
collectively  by  simple  recommendations  ?  .  .  . 

"  While  the  mode  of  representation  in  the  different  states  is  incorrupt,  con- 
gress cannot  abuse  its  powers ;  because  it  is  itself  the  very  essence  of  such 
representations." 


470  THE   UNION  OF  STATES. 

Another  writer,  advocating  the  strengthening  of  the  federation  with  more 
power  in  the  common  head, — i.  e. 'a  more  perfect  union/  —  says:  "then 
shall  harmony  and  concord  subsist  between  the  thirteen  American  republics, 
which,  when  ruled  under  this  common  head,  will  be  fully  efficient "  [to  do  a 
number  of  things  which  he  enumerates]. 

He  then  notes  the  apprehension  —  to  show  its  absurdity  —  "that  Congress, 
when  vested  with  so  extensive  authority,  might  employ  for  enslaving  the  states 
that  power  which  has  been  conferred  upon  them  —  as  the  guardians  of  our 
liberty." 

A  memorial  of  the  merchants  of  Philadelphia,  dated  April  6,  1785,  thinks 
that  "a  recommendation  from  congress  to  the  states,  to  vest  that  body  with 
the  necessary  powers  over  the  commerce  of  the  united  states,  would  be  well 
received  on  their  part." 

Ibid.     On  the  Philadelphia  convention. 

The  editor  speaks  of  "  the  convention  which  is  to  be  held  in  Philadelphia,  in 
May  next,  for  the  purpose  of  revising  the  federal  constitution." 

Ibid  :  A  circular  letter  of  congress  to  the  states,  dated  April,  ]  787,  contains 
the  following :  "  Let  it  be  remembered  that  the  thirteen  independent  sovereign 
states  have,  by  express  delegation  of  power,  formed  and  vested  in  us  a  general, 
though  limited  sovereignty,  for  the  general  and  national  purposes,  specified  in 
the  confederation.  In  this  sovereignty  they  cannot  severally  participate,  (ex- 
cept by  their  delegates)  nor  with  it  have  concurrent  jurisdiction.  They  then 
go  on  to  reason  that  the  treaty  power  with  which  they  are  vested,  enables 
them  to  bind  all  the  states,  and  that  a  state  legislature  cannot  alter  or  vary  a 
treaty,"  etc. 

Ibid,  for  June,  1787.  A  very  able  paper,  signed  "Harrington,"  say£  :  We 
have  now  the  chance  to  secure  for  America  "all  the  benefits  of  monarchy, 
without  parting  with  any  of  the  privileges  of  a  republic."  He  further 
says,  "she  may  divide  her  legislature  into  two  or  three  branches.  .  .  .  and 
may  confer  upon  a  supreme  magistrate  such  a  portion  of  executive  power, 
as  will  enable  him  to  exhibit  a  representation  of  majesty,  such  as  was  never 
seen  before,  for  it  will  be  the  majesty  of  a  free  people.  To  preserve  a  sense 
of  his  obligation  to  every  citizen,  he  may  be  elected  annually,  for  seven  years, 
or  for  life. 

"The  more  we  abridge  the  states  of  their  sovereignty,  and  concentrate  the 
supreme  power  in  an  assembly  of  the  states  (for  by  this  name  let  us  call  our 
federal  government)  the  more  safety,  liberty  and  prosperity  will  be  enjoyed  by 
each  of  the  states." 

Tench  Coxe,  Esq.,  in  the  same  number,  in  an  able  and  extended  paper  on 
a  commercial  system,  speaks  of  the  "  shameless  perseverance  of  some  of  the 
states  in  tender  laws,  after  the  value  of  the  paper  was  gone,  and  its  effect  on 
the  public  credit."  He  says :  "  It  would  not  be  difficult,  perhaps,  to  form  a 
new  article  of  confederation  to  prevent  it  in  future,  and  a  question  may  arise 
whether  fellowship  with  any  state  that  would  refuse  to  submit,  can  be  satisfac- 
tory or  safe." 

Ibid. :  An  important  speech  of  Hamilton,  in  assembly  of  New  York,  Feb.  18, 
1787,  is  copiously  extracted  from.  It  is  in  reference  to  giving  congress  the 
power  over  imposts  and  regulating  commerce.  He  refutes  the  idea  of  dan- 
ger to  the  integrity  and  sovereignty  of  the  states,  from  delegating  this  and 
other  powers  to  congress.  His  proposition  was  defeated  by  a  large  majority: 
such  was  the  fear  of  federal  power. 

Extract  from  a  circular  letter  of  Gen.  "Washington  to  the  Governors  of  the 
states,  on  resigning  his  command,  June  18,  1783 : 


APPENDIX  A.    NO.  3.  471 

"  There  are  four  things  which  I  humbly  conceive  are  essential  to  the  well- 
being  —  to  the  existence  of  the  united  states  as  an  independent  power  — 
"  FIRST.    AN  INDISSOLUBLE  UNION  OP  THE  STATES  UNDER  ONE  FEDERAL 

IIEAD. 

"  2nd.    A  sacred  regard  for  public  justice. 

"  3d.   The  adoption  of  a  proper  peace  establishment,  and, 

"  4th.  The  prevalence  of  that  pacific  and  friendly  disposition  among  the 
people  of  the  United  States,  which  will  induce  them  to  forget  their  local  preju- 
dices and  policies  ;  to  make  these  mutual  concessions  which  are  requisite  to  the 
general  prosperity,  and,  in  some  instances,  to  sacrifice  their  individual  advan- 
tages to  the  interest  of  the  community.'* 

"Under  the  first  head,"  he  declines  to  discuss  "the  principles  of  the 
Union,"  or  "the  great  question,"  "whether  it  be  expedient  and  requisite  for 
the  states  to  delegate  a  larger  portion  of  power  to  congress  or  not : "  yet  he 
deems  it  his  duty  "  to  assert  and  insist  upon  the  following  positions ;  that  unless 
the  states  will  suffer  congress  to  exercise  those  prerogatives,  they  are  undoubt- 
edly invested  with  by  the  constitution,  everything  must  very  rapidly  tend  to 
anarchy  and  confusion  —  that  it  is  indispensaole  to  the  happiness  of  the  indi- 
vidual states  that  there  should  be  lodged  somewhere  a  supreme  power  to  regu- 
late and  govern  the  general  concerns  of  the  confederated  republic,  without 
which  the  union  cannot  be  of  long  duration  —  that  there  must  be  a  faithful 
and  pointed  compliance  on  the  part  of  every  state  with  the  late  proposals  and 
demands  of  congress,  or  the  most  fatal  consequences  will  ensue  —  that  what- 
ever measures  have  a  tendency  to  dissolve  the  union,  or  contribute  to  violate, 
or  lessen  the  sovereign  authority,  ought  to  be  considered  as  hostile  to  the 
liberty  and  independence  of  America,  and  the  authors  of  them  treated  accord- 
ingly : — and  lastly  that,  unless  we  can  be  enabled  by  the  concurrence  of  the 
states  to  participate  of  the  fruits  of  the  revolution,  and  enjoy  the  essential 
benefits  of  civil  society  under  a  form  of  government  so  free  and  uncorrupted, 
so  happily  guarded  against  the  danger  of  oppression  as  has  been  devised  and 
adopted  by  the  articles  of  confederation,  it  will  be  a  subject  of  regret  that  so 
much  blood  and  treasure  have  been  lavished  for  no  purpose,"  etc. 

Ibid.,  Aug.,  1787. 

Some  men  think  that  tyranny  can  be  opposed  only  in  the  person  of  a  king ; 
but  this  is  a  mistake.  The  "ardor  civium  prava  jubentium "  is  as  much  to  be 
dreaded  as  the  "vultus  instantis  tyranni"  There  are  men  who  are  undaunted 
in  their  opposition  to  a  single  tyrant,  but  are,  notwithstanding,  the  slaves  of 
the  prejudices  and  passions  of  the  people. 

Ibid.  New  Jersey,  having  failed  to  comply  with  the  requisition  of  Septem- 
ber, 1785,  for  supplies,  Pinckney,  (Chas.)  of  South  Carolina,  from  Congress, 
and  others,  were  a  deputation  to  New  Jersey.  Pinckney  made  a  speech  to  the 
assembly  of  New  Jersey,  containing  the  following : 

"When  these  states  united,  convinced  of  the  inability  of  each  to  support  a 
separate  system,  and  that  their  protection  and  existence  depended  on  their 
union,  policy  as  well  as  prudence  declared  the  necessity  of  forming  one  general 
and  EFFICIENT  GOVERNMENT,  which,  while  it  protected  and  secured  the  whole, 
left  to  the  several  states  those  rights  of  internal  sovereignty,  which  it  was  not 
necessary  to  delegate,  and  which  could  be  exercised  without  injury  to  the 
federal  authority.  In  them  were  placed  all  the  essential  powers  which  con- 
stitute a  nation  —  such  as  the  exclusive  rights  of  peace  and  war;  of  sending 
and  receiving  embassies ;  of  forming  treaties  and  alliances  ;  and  equipping  and 
raising  fleets  and  armies."  He  also  speaks  of  obtaining  loans  on  the  faith  of 
the  United  States,  and  of  apportioning  to  the  States  their  quotas  of  public 
expenses,  etc. 


472  THE   UNION  OF  STATES. 

Ibid.,  Sept.,  1787.     Political  Sketches  by  William  Fans  Murray,  Esq. 

SKETCH  III.  — ARISTOCRACY. 

"No  right  of  governing  by  the  representation  of  constituents  of  equal  rights 
can  be  called  an  aristocratic  right.  Aristocracy  proves  an  inequality  of  rights : 
Delegated  power  does  not  prove,  as  in  the  American  democracies,  an  inequality 
of  rights ;  for  where  the  people  appoint  their  own  rulers,  the  rulers,  though 
possessed  of  greater  temporary  delegated  powers,  possess  no  more  rights  exclu- 
sively that  those  by  whom  they  were  chosen,  since  the  very  delegation  shows 
an  equality  between  the  candidate  and  constituent :  it  shows  choice,  which  im- 
plies a  right  of  rejection.  However  varied  the  modifications  of  the  powers  of 
government  may  be,  and  however  distant  they  may  appear  to  be,  from  the  mass 
of  the  people,  while  the  democratic  constitution  brings  back  the  powers  of 
government  at  stated  periods  to  its  source  of  sovereignty,  the  people,  no 
aristocracy  exists.  But  agreeably  to  the  constitutions  of  the  united  states  the 
rights  of  election  are  frequently  exercised  :  every  organ  of  state  sprouts  anew 
from  the  political  body  of  sovereignty.  Hereditary  honors,  hereditary  rights 
of  ruling,  are  excluded  expressly.  Jealousy  hath  left  nothing  for  implication  to 
fashion.  No  real  feature  therefore  is  visible,  either  in  the  constitutions  or  in 
the  governments  of  the  United  States." 

SKETCH  IV.  — EXTENT  OF  TERRITORY. 

"  Democracy  is  a  government  wherein  all  the  members  of  the  society  are 
possessed  of  equal  rights,  and  govern,  either  by  themselves,  or  by  their 
representatives,  elected  by  themselves,  and  invested  with  just  powers  of 
government." 

Ibid.,  Sept.,  1787.  "The  constitution  framed  for  the  united  states  of 
America,  by  a  convention  of  deputies  from  the  states  of  New  Hampshire, 
Massachusetts,  Connecticut,  etc.,  etc.,  at  a  session  begun  May  14,  and  ended 
Sept.  17,  1787." 

Ibid.,  Sept.,  1787.  A  "Pennsylvania  farmer"  says:  "How  may  we  avert 
the  impending  dangers?"  "Let  us  adopt  that  federal  constitution  which 
is  earnestly  recommended  by  a  convention  of  patriotic  sages,  and  which  while 
it  gives  energy  to  our  government,  wisely  secures  our  liberties.  .  .  .  Having 
once  adopted  this  truly  federal  form  of  government,  Dean  Tucker  and  all  the 
divines  of  England  may  prophecy  our  downfall  if  they  will ;  we  shall  not  regard 
them." 

Ibid.,  Sept.,  1787.  Letters  on  the  federal  government,  [written  after  the  fed- 
eral instrument  was  promulgated — this  number  of  the  American  Museum 
being  published  some  time  after  September.]  By  Tench  Coxe,  Esq. 

When  the  separation  between  the  two  countries  was  completed  by  the 
Declaration  of  Independence,  "new  governments  were  necessarily  estab- 
lished " — "republican" — "  many  of  the  state  constitutions  are  truly  excellent." 
"Our  misfortunes  have  been  that,  in  the  first  instance  we  adopted  no  na- 
tional government  at  all,  but  were  kept  together  by  common  danger  only ; 
and  that  in  the  confusions  of  a  civil  war,  we  framed  a  federal  constitution  — 
now  universally  admitted  to  be  inadequate  to  the  preservation  of  liberty,  prop- 
erty and  the  Union.  The  question  is  not,  then,  how  far  our  state  constitutions 
are  good  or  otherwise — the  object  of  our  wishes  is  to  amend  and  supply  the 
evident  and  allowed  errors  and  delects  of' the  federal  government." 

He  continues  that,  in  England  the  king  may  be  an  idiot,  a  tyrant :  he  cannot 


APPENDIX  A.    NO.  3.  473 

be  removed :  he  can  do  no  wrong.  "  In  America,  as  the  President  is  to  be  one 
of  the  people  at  the  end  of  his  short  term,  so  will  he  and  his  fellow  citizens 
remember  that  he  was  originally  one  of  the  people,  and  that  he  is  created  by 
their  breath.  .  .  .  Whatever  of  dignity  or  authority  he  possesses  is  a  dele- 
irih-d  part  of  their  [the  people's]  majesty  and  their  political  importance,  tran- 
siently vested  in  him  by  the  people  themselves,  for  their  own  happiness." 

"  As  our  President  bears  no  resemblance  to  a  king,  so  we  shall  see  the  senate 
have  no  similitude  to  nobles.  They  represent  states." 

"  House  of  Representatives.  Each  member  of  this  truly  popular  assembly 
will  bs  chosen  by  about  6000  electors,  —  poor  as  well  as  rich.  ...  No  state 
shall  have  less  than  one  member."  If  hereafter  the  ratio  of  representatives 
should  exceed  the  inhabitants  of  a  state  "  such  state  would  without  this  whole- 
some provision  lose  its  voice  in  the  house  of  representatives  —  a  circumstance 
which  the  constitution  renders  impossible." 

Ibid.,  Oct.,  1787. 

In  an  address  by  the  seceding  members  of  the  assembly  of  Pennsylvania  — 
16  in  number  —  the  following  objections  to  the  new  federal  plan  are  urged  for 
the  people  of  Pennsylvania  to  consider. 

Expense  of  it  in  addition  to  that  of  state  government : 

Whether,  in  case  your  state  government  should  be  annihilated  —  which  will 
probably  be  the  case,  or  dwindle  to  a  mere  corporation  —  the  continental  gov- 
ernment will  be  competent  to  attend  to  your  local  concerns. 

Objection  to  the  power  of  levying  and  collecting  taxes  : 

Whether  the  liberty  of  the  press  is  a  blessing  or  curse,  and  is  worth  a  decla- 
ration for  its  preservation : 

Whether  in  the  plan  of  government  there  should  not  be  a  bill  of  rights  pre- 
fixed or  inserted : 

Provision  against  standing  army  in  time  of  peace  is  insisted  on. 

Whether  trial  by  jury  in  civil  cases  ought  to  be  abolished: 

Whether  the  judiciary  of  the  United  States  is  not  so  constructed  as  to  absorb 
and  destroy  the  judiciaries  of  the  several  states  : 

Objection  to  continental  courts  for  trials  between  citizens  of  different  states, 
as  unnecessary :  also  to  appellate  jurisdiction,  as  to  fact  as  well  as  law  : 

"The  confederation  no  doubt  is  defective,  and  requires  amendment  and  revi- 
sion ;  and  had  the  convention  extended  their  plan  to  the  enabling  the  united 
states  to  regulate  commerce,  equalize  the  imposts,  collect  it  throughout  the 
united  states,  and  have  the  entire  jurisdiction  over  maritime  affairs  —  leaving 
the  exercise  of  internal  taxation  to  the  separate  states  —  we  apprehend  there 
would  be  no  objection  to  the  plan  of  government." 

In  a  sharp  and  able  reply,  signed  "Federal  Constitution"  is  the  follow- 
ing: 

"  The  objections  to  the  federal  government  are  weak,  false  and  absurd.  The 
neglect  of  the  convention  to  mention  the  liberty  of  the  press  arose  from  a 
respect  to  the  state  constitutions,  in  each  of  which  this  palladium  of  liberty  is 
secured,  and  which  is  guaranteed  to  them  as  an  essential  part  of  their  repub- 
lican forms  of  government.  But  supposing  this  had  not  been  done,  the  liberty 
of  the  press  would  have  been  an  inherent  and  political  right  as  long  as  nothing 
was  said  against  it.  The  convention  has  said  nothing  to  secure  the  privilege  of 
eating  and  drinking:  and  yet,  no  man  supposes  that  right  of  nature  to  be 
endangered  by  their  silence  about  it." 

Another  most  powerful  article —  signed  "One  of  the  People  " —  says  :  "  It  is 
affirmed  [in  said  address]  that  the  deputies  from  this  state  had  not  power 
to  recommend  to  the  people  under  their  appointment,  a  new  constitution. 
The  deputies  from  this  state  were  so  empowered."  They  had  power  "to 
devise,  discuss  and  report  such  alterations  and  further  provisions  as  may 


474  THE  UNION  OF  STATES. 

be  necessary  to  render  the  federal  government  fully  adequate  to  the  exi- 
gencies of  the  union;  .  .  .  alterations  in  governments  are  always  made  by 
the  people. 

"  It  is  said  that  this  constitution  will  annihilate  the  state  government.  On 
what  section  of  the  constitution  do  these  men  ground  their  assertion  ?  It 
breathes  nothing  like  it.  It  interferes  not  with  the  internal  government  of 
any  state.  It  supports  and  adds  a  dignity  to  every  government  in  the  united 
states." 

The  writer  then  comments  on  the  objection  that  congress  can  levy  taxes : 
"  This  is  a  power  without  which  no  government  can  exist.  ...  It  is  shameful 
to  say  that  this  tax  will  be  collected  by  soldiers.  The  power  is  not  given  to  a 
foreign  prince,  but  to  a  congress  chosen  by  the  people/'  [and  of  course,  deriving 
all  its  power  from  them]. 

"  The  freedom  of  the  press  and  trials  by  jury  are  not  infringed  on.  The 
constitution  is  silent,  and  with  propriety  too,  on  these  and  every  other  subject 
relative  to  the  internal  government  of  the  states.  These  are  secured  by  the 
different  state  constitutions.  1  repeat  again,  that,  the  federal  constitution  does 
not  interfere  witli  these  matters.  Their  power  is  defined  and  limited  by  the 
8th  section  of  the  first  article  of  the  constitution. 

"  It  is  essentially  necessary  that  the  judiciary  of  the  United  States  should 
have  an  appellate  jurisdiction,  both  in  law  arid  fact,  in  cases  of  dispute  between 
a  state  and  citizen  of  another  state,  and  between  citizens  of  different  states." 
[Never  yet  have  I  met  with  a  word  showing  that  a  transfer  of  citizenship  from 
the  state  to  the  united  states,  was  intended  or  even  thought  of.] 

In  the  same  number  "  Impartial "  says :  "  We  need  be  under  no  apprehen- 
sions of  encroachments  upon  our  liberties  from  congress,  because  the  principal 
branch  of  that  august  body  will  always  be  chosen  by  free  and  independent 
electors.  .  .  .  The  interest  of  the  representative  will  correspond  with  that  of 
his  constituents.  Every  measure  that  is  prejudicial  to  the  people,  will  be 
equally  so  to  those  whom  they  appoint  to  govern  them  —  they  cannot  betray 
their  electors  without  injuring  themselves  :  their  power,  their  official  existence 
depends  upon  the  people,  hence,  instead  of  adopting  measures  oppressive  to 
the  people,  the  only  danger  to  be  apprehended,  will  arise  from  their  being  too 
cautious  of  giving  offence,  and  being  too  remiss  in  the  necessary  operations  of 
government." 

Next  comes  substance  of  Hon.  James  Wilson's  speech  of  Oct.  6,  1787, 
professedly  "  to  answer  the  objections  which  have  been  raised "  to  the  new 
federal  plan,  which  "  the  impressions  of  four  mouths'  constant  attention  to  the 
subject"  enables  him  to  do. 

As  to  the  want  of  a  bill  of  rights,  he  says :  "  It  would  have  been  superfluous 
and  absurd  to  have  stipulated  with  a  federal  body  of  our  own  creation  —  that 
we  should  enjoy  those  privileges  of  which  we  are  not  divested  eiiher  by  the 
intention  or  the  act  that  has  brought  that  body  into  existence."  [The  pith  of 
the  speech  is  heretofore  quoted.  It  was  copied  everywhere,  and  shows  the 
understanding  of  that  day,  as  much  as  the  articles  in  the  Federalist  did.] 

In  the  same  number  "  Curtius,"  under  date  New  York,  Sept.  27,  1787, 
speaks  of  the  convention  as  "  an  assemblage  of  characters  most  of  them  illus- 
trious for  their  integrity,  patriotism  and  abilities,  representing  many  sovereign 
states,  forming  a  system  of  government  for  the  whole,"  etc. 

The  same  number  contains  Letter  IV.  of  Tench  Coxe,  "  on  the  federal  gov- 
ernment." He  says :  "  In  considering  the  powers  "  of  the  President,  Senate, 
and  House  of  Representatives,  "  we  have  seen  a  part  of  the  wholesome  pre- 
cautions which  are  contained  in  the  new  system." 

"  The  united  states  guarantee  to  every  state  in  the  union  a  separate  repub- 
lican form  of  government. 


APPENDIX  A.    NO.  3.  475 

"  From  thence  it  follows  that  any  man  or  any  body  of  men,  however  rich  and 
powerful,  who  shall  make  an  alteration  in  the  form  of  government  of  any  state 
whereby  the  powers  thereof  shall  be  attempted  to  be  taken  out  of  the  hands  of 
the  people  at  large,  will  stand  guilty  of  high  treason;  or  should  a  foreign 
power  seduce  or  overawe  the  people  of  any  state,  so  as  to  cause  them  to  vest 
in  the  families  of  any  ambitious  citizens  or  foreigners,  the  powers  of  hereditary 
governors,  whether  as  kings  or  nobles :  that  such  investment  of  power  would 
be  void  in  itself,  and  every  person  attempting  to  execute  them  would  also  be 
guilty  of  treason. 

"  Thep  eople  will  remain,  under  the  proposed  constitution,  the  fountain  of 
power  and  public  honor.  The  President,  the  Senate,  and  the  House  of  Repre- 
sentatives will  be  the  channels  through  which  the  stream  will  flow  :  but  it  will 
flow  from  the  people,  and  from  them  only.  Every  office,  religious,  civil  and 
military,  will  be  either  their  immediate  gift,  or  it  will  come  from  them  through 
the  hands  of  their  servants.  And  this,  as  observed  before,  will  be  guaranteed 
to  them  under  the  state  constitutions,  which  they  respectively  approve,  for  they 
cannot  be  royal  forms ;  cannot  be  aristocratical,  but  must  be  republican." 

Speaking  of  the  prohibition  of  ex  post  facto  laws,  he  remarks  :  "  If  a  time  of 
public  contention  shall  hereafter  arrive,  the  firm  and  ardent  friends  of  liberty 
may  know  the  length  to  which  they  can  pusli  their  noble  opposition  on  the 
foundation  of  the  laws.  Should  their  country's  cause  impel  them  further,  they 
will  be  acquainted  with  the  hazard,  and  using  those  arms  which  providence  has 
put  into  their  hands,  will  make  a  solemn  appeal  to  the  power  above."  [He 
knew  the  ever-recurring  necessity  of  opposing,  and  haply  fighting  against 
human  greed  and  wrong.] 

"  Henceforth  the  people  of  the  earth  will  consider  this  position  as  the  only 
rock  on  which  they  can  found  the  temple  of  liberty  —  that  taxation  and  repre- 
sentation are  inseparable.  Our  new  constitution  carries  it  into  eifect  on  the 
most  enlarged  and  liberal  scale :  for  a  representative  will  be  chosen  by  6,000  of 
his  fellow-citizens,  a  senator  by  half  a  sovereign  state,  a  president  by  a  whole 
nation. 

"  The  old  federal  constitution  contained  many  of  the  same  things,  which, 
from  error  or  disingenuousness,  are  urged  against  the  new  one.  NEITHER  OF 

THEM   HAS   A   BILL   OF   RIGHTS,   NOR    DOES    EITHER    NOTICE    THE    LIBERTY   OF 

THE  PRESS,  because  they  are  already  provided  for  by  the  state  constitutions ; 
and,  relating  only  to  personal  rights,  they  could  not  be  mentioned  in  a  contract 
among  sovereign  states." 

In  reference  to  the  objection  to  the  federal  judiciary,  he  says,  "in  nineteen 
out  of  twenty  suits  at  law,  the  federal  courts  cannot  interfere."  Then  he 
speaks  of  the  jurisdiction  over  "  disputes  between  citizens  of  any  state,  about 
land  lying  out  of  the  bounds  thereof,"  or  "  when  a  trial  is  to  be  had  between 
citizens  of  one  state  and  citizens  of  another,  or  the  government  of  another," 
the  citizen  can  appeal  to  a  disinterested  federal  court,  and  avoid  a  state  court, 
that,  perhaps,  of  his  opponent.  [Where  are  the  citizens  of  a  nation  ?] 

"  Besides  the  securities  for  the  liberties  of  the  people  arising  out  of  the  fed- 
eral government,  they  are  guarded  by  their  state  constitutions  and  by  the 
nature  of  things  in  the  separate  states.  The  governor  or  president  of  each 
commonwealth,  the  councils,  senators,  assemblies,  judges,  [here  follow  a  long 
list  of  officials]  will  still  be  chosen  within  each  state,  without  any  possible  inter- 
ference of  the  federal  government.  The  separate  states  will  also  choose  all  the 
members  of  the  legislative  and  executive  branches  of  the  united  states.  The 
people  at  large  in  each  state,  will  choose  their  federal  representatives,  and  .  .  . 
the  electors  of  president  and  vice-president  of  the  union,  and  lastly  the  legisla- 
tures of  the  states  will  have  the  election  of  the  senate." 

He  then  asks  if,  under  these  circumstances,  betrayal  of  the  country  can  be 


476  THE  UNION  OF  STATES. 


live  officer  [elected  as  above]  watched  by  the  federal  representatives,  by  the 
senate,  by  the  state  legislatures,  by  his  personal  enemies  in  his  own  state,  by 
the  jealousy  of  the  people  of  the  rival  states,  and  by  the  whole  people  of  the 
Union." 

Roger  Sherman  and  Oliver  Ellsworth,  in  letter  to  Governor  of  Connecticut, 
dated  New  London,  Sept.  26,  1787,  say:  "The  convention  endeavored  to 
provide  for  the  energy  of  government  on  the  one  hand,  and  suitable  checks  on 
the  other,  to  secure  the  rights  of  the  particular  states,  and  the  liberties  and 
properties  of  the  citizens.  We  wish  it  may  meet  the  approbation  of  the  sev- 
eral states,  and  be  a  mean  of  securing  their  rights,  and  lengthening  out  their 
tranquillity." 

From  an  address  to  the  citizens  of  New  Jersey  on  the  new  constitution, 
Nov.  5,  1787,  by  "a  Jerseyman."  "The  power  of  congress  to  levy  and 
collect  taxes,  duties,  imposts  and  excises,  has  been  objected  to.  By  whom 
are  those  taxes  to  be  laid  ?  by  the  representatives  of  the  several  states  in  con- 
gress ...  in  perfect  conformity  to  that  just  maxim  in  free  governments  that 
taxation  and  representation  should  go  hand  in  hand."  To  what  purpose  are 
these  taxes  to  be  applied  ?  to  pay  the  debts  and  provide  for  the  common 
defence  and  general  welfare  of  the  united  states. 

"  Although  I  drew  my  first  breath  in  New  Jersey  and  have  continued  in  it 
during  my  life,  firmly  attached  to  its  local  interest,  yet  when  I  consider  the 
impossibility  of  its  existence  at  present  as  a  sovereign  state,  without  a  union 
with  the  others,  I  wish  to  feel  myself  more  a  citizen  of  the  United  States  than 
of  New  Jersey  alone." 

Ibid.,  Nov.  1787.  The  first  six  letters  of  the  Federalist  addressed  "to  the 
people  of  the  state  of  New  York "  are  published  in  the  November  and  De- 
cember numbers. 

It  is  sufficient  to  note  here  that  they  advocate  a  "union  of  states,"  and 
oppose  the  idea  that  "  three  or  four  confederacies  would  be  better  than  one," 
and  consider  the  plan  before  them  as  a  confederation  of  states.  In  the  first 
number,  dated  New  York,  Oct.  30, 1787,  the  author  sets  his  aim  forth  thus  :  "  I 
propose  in  a  series  of  papers  to  discuss  the  following  interesting  particulars  — 
the  utility  of  the  union  to  your  [the  people  of  New  York's]  political  prosperity 
—  the  insufficiency  of  the  present  confederation  to  preserve  that  union  —  the 
necessity  of  a  government,  at  least  equally  energetic  with  the  one  proposed  to 
the  attainment  of  this  object  —  the  conformity  of  the  proposed  constitution  to 
the  true  principles  of  republican  government  —  its  analogy  to  your  own  state 
constitution,  —  and  lastly  the  additional  security  which  its  adoption  will  afford 
to  the  preservation  of  that  species  of  government,  to  liberty,  and  to  property." 

Ibid.,  Nov.  1787.  Inhabitants  of  Fredericksburg,  Va.,  instruct  John  Daw- 
son  and  James  Monroe  —  present  form  of  government  inefficacious  —  that 
"  the  safety,  prosperity,  and  happiness  of  Virginia  as  well  as  the  other  states 
depend  greatly  "  on  adopting  "  the  system  recommended  by  the  convention 
of  states;"  that  the  legislature  should  submit  the  same  to  a  convention  of  dele- 
gates of  the  state,  Oct.  19,  1787. 

Instructions  from  the  freeholders  of  Frederic  County,  Oct.  22,  1787  : 
We  conceive  "  this  system  to  be  well  calculated  to  secure  to  us  our  inde- 
pendence as  a  nation,  and  our  civil  rights  as  individuals,  that  without  a  more 
energetic  federal  government  we  cannot  exist  as  a  nation :  we  hence  instruct 
you  to  vote  for  holding  a  convention  as  early  as  possible,  to  whose  considera- 
tion the  proposed  constitution  may  be  submitted." 


APPENDIX  A.    NO.  3.  477 

Instructions  of  the  inhabitants  of  Petersburg,  Oct.  24,  1787 :  They  say 
they  are  impressed  with  incompleteness  of  the  present  powers  of  congress,  and 
feel  the  need  of  review  and  amendment  of  the  confederation,  and  continue  :  — 
"we  are  sensible  of  the  difficulty  of  forming  such  a  plan  of  government  as  shall 
at  once  combine  the  diversity  of  interests  and  secure  the  rights  of  the  respec- 
tive states,  subject  to  the  general  control  of  one  sovereign  authority,  [meaning 
that  of  the  associates,  through  their  agency,  over  the  citizens  of  each,  so  far  as 
the  delegated  powers  go]  ;  we  approve  of  the  proposed  plan  of  the  federal  con- 
stitution, as  formed  to  cement  the  union  of  the  states,  and  we  recommend  im- 
mediately calling  a  convention  to  consider  it." 

Ibid.,  Dec.  1787.  "In  a  long  and  very  able  address  of  the  minority  of 
the  Pennsylvania  convention,  the  objections  to  the  federal  plan  are  fully  set 
forth. 

"  The  new  government  will  not  be  a  confederacy  of  states,  but  a  consoli- 
dated government,  founded  on  the  destruction  of  the  several  governments  of 
the  states  : " 

They  go  on  to  object  that  the  powers  of  congress  under  the  new  constitution 
—  are  complete  and  unlimited  over  the  purse  and  the  sword : 

They  speak  of  the  power  of  taxation.  No  article  is  reserved  to  the  state 
government,  so  that  congress  may  monopolize  every  source  of  revenue.  And 
congress  may  make  all  laws  necessary  to  carry  into  effect  the  powers  fore- 
going, etc. ; 

They  say  that  this  supremacy  is  consummated  by  the  "supreme  law"  clause; 
that  the  constitution  gives  the  federal  government  control  of  the  militia  ;  that 
the  judicial  power  is  all  absorbing ;  that  trial  by  jury  is  not  secured  in  civil 
cases  ;  that  there  is  no  reservation  of  the  rights  and  privileges  of  the  state  gov- 
ernments, as  in  the  confederation  ;  no  declaration  that  the  states  reserve  their 
sovereignty,  freedom  and  independence ; 

That  the  legislative  power  is  so  unlimited  in  its  nature,  and  may  be  so 
comprehensive  and  boundless  in  its  exercise,  that  it  will  swallow  up  the  state 
governments  in  the  grand  vortex  of  the  general  empire. 

Many  other  objections  are  urged,  and  the  address  concludes  as  follows  :  "  In 
short,  consolidation  pervades  the  whole  constitution,  ...  the  preamble  begins 
with  words,  'we  the  people  of  the  united  states,'  which  is  the  style  of  a  com- 
pact between  individuals  entering  into  a  state  of  society ;  and  not  that  of  a 
confederation  of  states.  .  .  . 

"  Thus  we  have  fully  established  the  position,  that  the  powers  vested  by  this 
constitution  in  congress,  will  effect  a  consolidation  of  the  states  under  one  gov- 
ernment, which,  even  the  advocates  of  this  constitution  admit,  could  not  be  done 
without  the  sacrifice  of  all  liberty." 

[American  Museum,  January,  1788.] 

Edmund  Randolph,  in  a  long  letter  to  speaker  of  the  House  of  Delegates  of 
Virginia,  stating  reasons  why  he  refused  to  sign  the  federal  plan,  hopes  Vir- 
ginia will  be  seconded  in  —  I.  Getting  ambiguities  removed ;  2.  In  rendering 
president  ineligible;  3.  In  taking  from  him  judicial  appointments,  and  filling 
vacancies  in  recess  ;  4.  In  depriving  him  of  pardoning  for  treason,  especially 
before  conviction ;  5.  In  drawing  line  between  the  powers  of  congress,  and  in- 
dividual states,  and  in  defining  the  former  so  as  to  leave  no  clashing  of  juris- 
dictions, or  dangerous  disputes,  and  to  prevent  the  one  from  being  swallowed 
up  by  the  other  under  cover  of  general  words  and  implication;  6.  In  abridg- 
ing power  of  senate  in  making  treaties  the  supreme  law  of  the  land ;  7.  In  pre- 
venting congress  from  determining  their  own  salaries,  and  finally,  8.  In  limiting 
and  defining  the  judicial  power. 


478  THE  UNION  OF   STATES. 

He  clings  to  the  union  as  the  rock  of  our  salvation. 

Meeting  of  inhabitants  of  Chowan  County,  N.  C. 

"  This  state  can  have  no  prospect  either  of  security  or  honor,  but  by  a  firm 
and  indissoluble  union  with  the  other  states  in  the  confederation.  We  own 
with  admiration  and  gratitude  a  system  formed  by  the  unanimous  concurrence 
of  twelve  states,  which  attains  the  great  object  of  a  united  government  '  to 
establish  justice,  ensure  domestic  tranquillity,  provide  for  the  common  defence, 
promote  the  general  welfare,  and  secure  the  blessings  of  liberty  to  ourselves 
and  posterity.' " 

They  call  for  an  early  convention  "  to  deliberate  on  the  new  constitution  pro- 
posed." 

The  Grand  Jury  of  Edenton,  N.  C.,  Nov.  12,  1787,  express  themselves 
as  "  deeply  sensible  of  the  necessity  of  a  firm  and  lasting  union  among  the 
American  states,  to  ensure  the  common  safety  and  liberty  of  all.  .  .  .  We  ad- 
mire, in  the  new  constitution,  a  proper  jealousy  of  liberty  mixed  with  a  due 
regard  to  the  necessity  of  a  strong  authoritative  government.  Such  a  one  is 
as  requisite  for  a  confederated,  as  for  a  single  government." 

They  "  earnestly  wish  "  for  a  convention  which,  they  say,  can  adopt  or  re- 
ject. 

["  A  strong  authoritative  government  "  was  adopted.  It  had  the  power  to 
execute  its  decrees  —  power  of  coercion  —  on  citizens,  not  on  states.] 

Letter  of  Gen.  Washington  to  a  friend  in  Fredericksburg,  Va. 

"  No  alternative  [in  my  opinion]  between  the  adoption  of  it,  and  anarchy. 
If  one  state,  or  a  minority  of  them,  should  suppose  that  they  can  dictate  a  con- 
stitution to  the  Union,  they  will  find  themselves  deceived.  ...  It  or  disunion 
is  before  us  to  choose  from." 

In  a  political  society,  at  Richmond,  Va.,  the  federal  constitution  was  dis- 
cussed —  the  principal  opponent,  P.  Henry,  the  leading  advocate,  Nicholas : 
after  three  evenings,  it  prevailed  by  128  yeas  to  15  nays.  "It  is  expected 
there  will  be  the  same  majority  in  the  state  convention."  ' 

Chancellor  R.  R.  Livingston,  in  oration  July  4,  1787,  before  the  society 
of  The  Cincinnati,  New  York,  said,  "our  constitution  being  purely  democratic, 
the  people  are  sovereign  and  absolute.  The  faults  of  absolute  governments 
are  to  be  charged  to  the  sovereign  —  in  ours  they  must  be  traced  back  to  the 
people." 

Ibid.,  Feb.  1788.  Address  to  the  minority  of  the  convention  of  Pennsyl- 
vania, by  "  A  Freeman."  [Tench  Coxe.] 

"  The  consolidation  of  the  united  states  into  one  government  by  the  operation 
of  the  proposed  constitution  in  contradistinction  from  a  confederacy,  appears  to 
you  to  be  the  consequence  of  the  system,  and  the  intention  of  the  framers. 
This  is  the  point  of  difference  I  now  treat  of." 

He  admits  that  if  the  parts  they  have  particularized  were  as  represented, 
"the  state  sovereignties  would  indeed  be  finally  annihilated."  "  Appearances," 
"  have  misled  you."  "  I  shall  endeavor  to  exhibit  clear  and  permanent  marks 
and  lines  of  separate  sovereignty,  which  must  ever  distinguish  and  circumscribe 
each  of  the  several  states,  and  prevent  their  annihilations  by  the  federal  govern- 
ment, or  any  of  its  operations." 

He  speaks  of  "  the  crown  having  been  merely  a  centre  of  union ;  the  act  of 
independence  dissolved  the  political  ties  which  had  formerly  existed  among  the 
states." 

He  then  says  "a  confederacy  of  states  was  the  mode  of  connection,  which 
was  wisely  desired  and  actually  adopted;"  but  he  says  there  were  appearances 
of  consolidation,  which  he  instances,  and  says,  "have  deceived  said  minority  — 
they  existing  in  the  new  as  they  did  in  the  old  confederacy." 

"  The  matter  will  be  better  understood  by  proceeding  to  those  points  which 


APPENDIX  A.    NO.  3.  479 

show  that,  as  under  the  old,  so  under  the  new  federal  constitution,  the  thirteen 
united  states  were  not  intended  to  be,  and  really  are  not  cons' >hdated  in  such  a 
manner  as  to  absorb  or  destroy  the  sovereignties  of  the  several  states.  In 
order  to  a  perfect  understanding  of  each  other,  it  may  be  proper  to  observe 
here,  that,  by  your  term  consolidation,  I  understand  you  mean  the  final  annihi- 
lation of  separate  state  government,  or  sovereignty,  by  the  nature  and  opera- 
tions of  the  proposed  constitution. 

"  Among  the  proofs  you  adduce  of  such  consolidation  being  the  intention  of 
the  late  convention,  is  the  expression  *  we  the  people.'  Though  this  is  a  mere 
form  of  words,  it  will  be  well  to  see  what  expressions  are  found  in  the  constitu- 
tion in  opposition  to  this,  and  indicative  of  the  intentions  of  the  convention, 
before  we  consider  those  things,  which,  as  I  conceive,  secure  the  states  from 
a  possibility  of  losing  their  respective  sovereignties. 

"  First,  then,  though  the  convention  propose  that  it  should  be  the  act  of 
the  people,  yet  it  is  to  be  done  in  their  capacities  as  citizens  of  the  several 
members  of  our  confederacy  —  who  are  declared  to  be  the  people  of  'the 
united  states'  —  to  which  idea  the  expression  is  strictly  confined,  and  the 
general  term  of  America,  which  is  constantly  used  in  speaking  of  us  as  a 
nation,  is  carefully  omitted.  A  pointed  view  was  evidently  had  to  our  exist- 
ing union  [of  course,  for  the  phrase  'a  more  perfect  union'  is  used].  But 
we  must  see  at  once  that  the  great  reason  of  '  the  people '  being  mentioned 
was,  that  alterations  of  several  constitutions  were  to  be  effected,  which 
the  convention  well  knew,  could  be  done  by  no  authority  but  that  of  the  people, 
either  determining  themselves  in  their  several  states,  or  delegating  adequate 
powers  to  their  state  conventions.  Had  the  federal  convention  meant  to 
exclude  the  idea  of  union  —  that  is  of  several  and  separate  sovereignties  joining 
in  a  confederacy  —  they  would  have  said  '  we  the  people  of  America : '  for  union 
necessarily  involves  the  idea  of  competent  states,  which  complete  consolida- 
tion excludes.  But  the  severally  of  the  states  is  frequently  recognized  in 
the  most  distinct  manner,  in  the  course  of  the  constitution."  He  then  gives 
instances. 

Let  us  proceed  to  evidences  against  consolidation,  of  more  force  than  the 
mere  form  of  words. 

It  will  be  found  on  a  careful  examination,  that  many  things  which  are  indis- 
pensably necessary  to  the  existence  and  good  order  of  society,  cannot  be  per- 
formed by  the  federal  government,  but  will  require  the  agency  and  powers  of 
the  state  legislatures  or  sovereignties,  with  their  various  appurtenances  or 
appendages, 

"  1st.  Congress,  under  all  the  powers  of  the  constitution,  can  neither  train  the 
militia,  nor  appoint  the  officers  thereof. 

"  2d.  They  cannot  fix  the  qualifications  of  electors,  etc. 

"3d.  In  case  of  vacancy  in  the  senate,  or  house  of  representatives,  they 
cannot  issue  a  writ  for  a  new  election,  etc. 

"  4th.  They  cannot  appoint  a  judge,  constitute  a  court,  or  in  any  other  way 
interfere  in  determining  offences  against  the  criminal  law  of  the  states.  Nor 
can  they  interfere  in  civil  causes. 

"  5th.  They  cannot  elect  a  president,  vice-president,  a  senator,  or  a  federal 
representative,  without  all  of  which  their  own  government  [the  whole  federal 
•  concern]  must  remain  suspended  and  universal  anarchy  must  ensue  [anarchy  or 
lack  of  government  only  so  far  as  federal  government  is  concerned]. 

"6th.  They  cannot  determine  the  place  of  choosing  senators,  because  that 
would  be  derogatory  to  the  sovereignty  of  the  state  legislatures,  who  are  to 
elect  them. 

"  7th.  They  cannot  enact  laws  for  the  inspection  of  the  produce  of  the 
country  —  an  important  matter  to  the  commerce  of  the  several  states,  etc. 


480  THE  UNION  OF   STATES. 

"8th.  They  cannot  appoint  or  commission  any  state  officer  —  executive, 
legislative  and  judicial. 

"9th.  They  cannot  interfere  with  the  opening  of  rivers  and  canals;  the 
making  or  regulation  of  roads,  except  post-roads ;  building  bridges ;  erecting 
ferries ;  the  establishment  of  state  seminaries  of  learning ;  libraries ;  literary, 
religious,  trading  or  manufacturing  societies ;  erecting  or  regulating  the  police 
of  cities,  towns  or  boroughs ;  creating  new  state  offices  ;  building  light-houses, 
public  wharves,  county  jails,  markets,  or  other  public  buildings ;  making  sale  of 
state  lands  and  other  state  property,  or  receiving  their  revenues ;  executing  the 
state  laws ;  altering  the  criminal  laws ;  nor  can  they  do  any  other  matter 
or  thing  appertaining  to  the  internal  affairs  of  any  state,  whether  legislative, 
executive,  or  judicial,  civil  or  ecclesiastical. 

"  10th.  They  cannot  interfere  with,  alter,  or  amend  the  constitution  of  any 
state." 

In  the  number  for  March  1788,  "A  Freeman"  [Tench  Coxe]  continues: 

"  I  pointed  out  a  variety  of  instances,  in  which  the  agency  and  powers  of 
the  state  governments  are  absolutely  necessary  to  the  existence  of  civil  society, 
and  to  the  execution  of  the  federal  constitution  itself.  I  particularized  neces- 
sary matters  to  be  done,  which  cannot  be  done  by  the  general  government," 
Hence  —  he  continues  —  we  find  that  not  only  the  state  powers  must  exist,  but 
that  they  are  indispensable. 

"  Having  seen  what  congress  cannot  do,  let  us  see  what  the  state  govern- 
ments  must  or  may  do. 

"  First  then,  each  state  can  appoint  every  officer  of  its  own  militia,  and  can 
train  the  same  [i.  e.  the  militia],  oy  which  it  will  be  sure  of  a  powerful  military 
support,  attached  to,  and  even  part  of  itself,  wherein  no  citizen  of  any  other 
state  can  be  even  a  private  sentinel,  much  less  have  influence  or  command. 

"2d.  Every  regulation  relating  to  religion,  or  the  property  of  religious 
bodies,  must  be  made  by  the  state  governments,  since  no  powers  affecting  those 
points  are  contained  in  the  constitution. 

"  3d.  The  state  legislatures  and  constitutions  must  determine  the  qualifica- 
tions of  the  electors  for  both  branches  of  the  federal  government  —  and  here 
let  us  remember  to  adhere  firmly,  within  our  respective  commonwealths,  to 
genuine  republican  principles.  Wisdom,  on  this  point,  which  [point]  lies 
entirely  in  our  hands,  will  pervade  the  whole  system,  and  will  be  a  never-failing 
antidote  to  aristocracy,  oligarchy  and  monarchy. 

"4th.  [Regulating  descents  prohibiting  entails  —  equal  division  of  intestate 
successions,  are  thought  necessary,  and  the  whole  subject  is  said  to  belong  to 
states.]  This  power,  with  that  mentioned  under  the  last  head,  if  exercised 
with  wisdom  and  virtue,  will  preserve  the  freedom  of  the  states,  beyond  any 
other  means. 

"  5th.  The  elections  of  the  president,  vice-president,  senators  and  representa- 
tives are  exclusively  in  the  hands  of  the  states  —  even  as  to  filling  vacancies. 
The  smallest  interference  of  congress  is  not  permitted,  either  in  prescribing  the 
qualifications  of  electors,  or  in  determining  what  persons  may  or  may  not  be 
elected  [then  are  mentioned  some  regulations,  which  congress  is  authorized  by 
the  states  to  make]. 

"  6th.  The  states  will  elect,  appoint  and  commission  all  their  own  officers, 
without  any  possible  interference  of  the  federal  government.  [Senators,  repre- 
sentatives and  president  are  virtually  commissioned  by  the  states,  a  point  too 
seldom  mentioned  or  thought  of: — First,  they  must  be  citizens  of  states; 
second,  representatives  are  elected  by,  and  hold  certificates  of  election  from 
states,  with  the  states'  broad  seals  on  them.  So  with  senators ;  and  the  president 
finds  his  validity  in  state  records  of  state  action ;  and  all  federal  officers  must  go 
back  to  states  in  tracing  up  to  the  source,  their  official  being.] 


APPENDIX  A.    NO.  3.  481 

"  7th.  The  states  can  alter  and  amend  their  several  constitutions,  provided 
they  do  not  make  them  aristocratical,  oligarchic,  or  monarchical :  for  the 
federal  constitution  restrains  them  from  any  alterations  that  are  not  really 
republican.  That  is,  the  sovereignty  of  the  people  is  never  to  be  diminished  or 
destroyed. 

"  8th.  The  states  have  the  power  to  erect  corporations  for  literary,  religious, 
commercial,  or  other  purposes,  which  the  federal  government  cannot  prevent. 

"  9th.  Every  state  can  always  give  its  dissent  to  federal  bills,  as  each  has  a 
vote  in  the  senate  and  house  of  representatives,  secured  by  the  Constitution. 
Hence  it  appears  not  only,  that  the  state  governments  are  intended  to  remain  in 
force  within  their  respective  jurisdictions,  but  they  are  always  to  be  known  to, 
and  lutve  their  voices  as  states,  in  the  federal  councils. 

"  10th.  The  states  are  not  only  to  elect  all  their  own  officers,  but  they  have 
a  check  by  their  delegates  to  the  senate,  on  the  appointment  of  all  federal 
officers. 

"llth.  The  states  are  to  hold  separate  territorial  rights,  and  the  domestic 
jurisdiction  thereof,  exclusively  of  any  interference  of  the  federal  government. 

"  12th.  The  states  will  regulate  and  administer  the  criminal  law.  [The 
criminal  jurisdiction  of  the  federal  government  is  not  very  clearly  set  forth. 
Of  course,  it  must  be,  in  cases  excepted  out  of  the  jurisdiction  of  the  states, 
by  the  states  themselves,  must  come  from  the  states,  and  must  be  within  the 
grants  of  the  federal  constitution.] 

"  13th.  The  states  are  to  determine  all  the  innumerable  disputes  about  prop- 
erty lying  within  their  respective  territories  between  their  own  citizens  —  such 
as  titles,  boundaries,  debts,  contracts,  etc.,  etc.;  none  of  which  can  ever  be 
cognizable  by  the  federal  government. 

"  14th.  The  several  states  can,  [here  follow  a  long  list  of  things  and 
subjects  '  of  the  utmost  importance  to  the  happiness  of  their  respective  citizens,' 
which  the  states  can  do.] 

"In  addition  to  this  enumeration  of  the  powers  and  duties  of  the  state 
governments,  we  shall  find  many  other  instances  under  the  constitution,  which 
require,  or  imply  the  existence,  or  continuance,  of  the  sovereignty  or  severally 
of  the  states." 

"  The  following  are  some  of  them  : 

"  All  process  against  criminals,  and  many  other  law  proceedings,  will  be 
brought  by,  and  run,  in  the  name  of  that  commonwealth  in  which  the  offence  or 
event  shall  have  taken  place. 

"  The  senate  will  be  representatives  of  the  several  state  sovereignties. 

"  Every  state  must  send  its  own  citizens  to  the  senate  and  to  the  house  of 
representatives.  No  man  can  go  thither  but  from  the  state  of  which  he  is  a 
complete  citizen,  and  to  which,  if  they  choose,  he  shall  be  sworn  to  be  faithful. 

"  No  state  shall  on  any  pretence  be  without  an  equal  voice  in  the  senate, 
and  a  vote  in  the  house  of  representatives. 

"Any  state  may  repel  invasions,  or  commence  a  war  under  emergent 
circumstances,  without  waiting  for  the  consent  of  congress. 

"  The  electors  of  the  president  and  vice-president  must  not  nominate  more 
than  one  person  of  the  state  to  which  they  respectively  belong,  so  careful  is  the 
federal  constitution  to  preserve  the  rights  of  the  states. 

"  In  case  of  an  equality  of  votes  in  the  election  of  president  and  vice-presi- 
dent, a  casting  voice  is  given  to  the  states,  from  a  due  attention  to  their  sove- 
reignty in  appointing  the  ostensible  head  of  the  federal  government." 

He  next  speaks  of  "  written  communications  from  the  governors  of  states, 
of  the  provisions  for  adjusting  differences  between  states,  and  between  one  state 
and  the  citizens  of  another  —  the  admission  of  new  states  :  "  as  to  this,  he  says  : 
"  As  all  the  territory  of  each  state  is  already  in  the  union,  any  district  must 

31 


482  THE  UNION  OF  STATES. 

stand  on  different  ground,  when  erected  into  a  state  from  what  it  did  when  it 
was  counties,  or  a  part  of  an  already  existing  member  of  the  confederacy."    He 


pposit 

federal  justiciary  are  to  give  faith  and  credit  to  the  records  and  proceedings  of 
every  other  state."  " Eacli  state  has,  in  the  federal  constitution,  a  guaranty  of 
a  separate  republican  form  of  government."  "  Two-thirds  of  the  states  in '  the 
proposed  confederacy  can  call  a  convention;  not  two-thirds  of  the  people." 
"  Three-fourths  of  the  states  can  alter  the  constitution,  not  three-fourths  of  the 
people." 

"  From  this  examination  of  the  proposed  constitution  for  the  united  states,  I 
trust  it  will  appear  that,  though  there  are  some  parts  of  it,  which,  taken  sepa- 
rately, look  a  little  like  consolidation,  yet  there  are  very  many  others  of  a 
nature,  which  proves  that  no  such  thing  was  intended,  and  that  it  cannot  ever 
take  place. 

"  It  is  but  since  the  middle  of  the  present  century,  that  the  principles  and 
practice  of  free  governments  have  been  well  understood.  .  .  .  The  principles 
on  which  free  sovereignties  ought  to  confederate,  is  quite  a  new  question,  and  a 
new  case.  .  .  .  One  circumstance  has  exceedingly  obscured  the  subject  and  hid 
the  truth  from  the  eyes  of  many  of  us.  Most  of  the  states  being  in  possession 
of  free  governments,  some  have  looked  for  the  same  for-ms  in  a  confederating 
instrument  which  they  have  justly  esteemed  in  their  several  social  compacts." 
He  then  concludes  by  referring  to  the  distinction  between  the  original  social 
compact  and  the  constitution  of  the  league  and  federal  government. 

In  the  American  Museum  of  April,  1788,  is  No.  III.  of  the  same  address  to 
the  minority  of  the  Pennsylvania  convention,  by  Tench  Coxe. 

He  says  he  has  heretofore  shown  "  from  the  proposed  frame  of  government, 
and  the  state  constitutions,"  "  that  there  is  no  ground  to  apprehend  a  consoli- 
dation of  the  states,  which  shall  join  the  depending  confederacy  into  one  gov- 
ernment." 

He  believes,  with  Mr.  Wilson,  that  "  despotism  would  be  the  consequence  of 
a  single  national  constitution,  in  which  all  the  objects  of  society  and  government 
were  so  completely  provided  for,  as  to  place  the  several  states  in  the  union 
on  the  footing  of  counties  of  the  empire.  But  permit  me  to  ask  you,  gentle- 
men, will  such  be  the  condition  of  the  states  ?  Where  is  the  county  that  can 
independently  train  its  own  militia ;  appoint  its  civil  and  militia  officers  ;  estab- 
lish a  peculiar  system  of  penal  laws ;  issue  criminal  process  in  its  own  name ; 
erect  corporations ;  impose  direct  taxes,  excises  and  duties ;  hold  lands  in  its 
own  right ;  commence  war  on  any  emergency ;  regulate  descents ;  prescribe 
the  qualifications  of  electors;  alter  its  constitution  or  the  principles  of  its 
government ;  divide  itself  into  separate  and  independent  parts ;  join  itself  to 
another  state ;  issue  writs  for  elections  and  regulate  the  same ;  enact  inspection 
laws ;  erect  courts ;  appoint  judges ;  commission  all  its  officers ;  create  new 
officers  ;  sell  and  give  away  its  lands ;  erect  fortifications  ;  and  in  short  where  is 
the  county  in  the  union,  or  in  the  world,  that  can  exercise  in  any  instance 
independent  legislative,  executive,  and  judicial  powers. 

"  The  construction  of  the  senate  affords  an  absolute  certainty  that  the  states 
will  not  lose  their  present  share  of  separate  powers.  No  state  is  to  lose  its 
voice  therein  without  its  own  consent.  Governor  Randolph  justly  observes, 
that  the  force  of  the  constitution  of  any  state  can  only  be  lessened  by  the  ab- 
solute grant  of  its  own  citizens.  Whatever  therefore  is  now  possessed  will 
remain,  unless  transferred  by  new  grants." 

He  then  mentions  the  control  states  will  be  likely  to  have  over  their  senators, 
and  thinks  they  may  be  too  partial  to  the  state,  to  the  injury  of  national 
objects. 


APPENDIX  A.    NO.  3.  483 

And,  continues  he,  so  independent  will  the  state  governments  be,  that  their 
laws  on  some  subjects  may  DC  severer  than  those  of  the  union:  "Treason 
against  the  united  states,  for  instance,  cannot  be  attended  with  confiscation 
and  corruption  of  blood  ;  but  by  the  existing  laws  of  all  the  states,  the  unoffend- 
ing families  of  attainted  persons,  stripped  of  all  hereditary  rights,  and  con- 
demned to  the  bitter  portion  of  extreme  poverty,  are  left  without  their  friend 
and  parent  to  meet  the  trials  of  the  world  alone,  an  awful  monument  of  the 
sovereign  and  avenging  power  of  their  native  state.  Let  the  representative  or 
senator  who  may  meditate  the  annihilation  of  the  government  of  his  state,  duly 
consider  this  before  it  be  too  late." 

"  The  lordship  of  the  soil  is  one  of  the  most  valuable  and  powerful  appen- 
dages of  sovereignty :  this  remains  in  full  perfection  with  every  state.  From 
them  must  grants  flow.  ...  To  them  also  as  original  and  rightful  proprieta- 
ries and  lords  of  the  soil,  will  the  estates  of  extinct  families  revert." 

"  Independent  revenues  and  resources  are  indubitable  proofs  of  sovereignty." 
[The  power  to  collect  federal  revenues  is  derived  from  the  states  :  the  federal 
functionaries  levy  taxes,  etc.,  on  subjects  of  taxation  within  the  states,  solely 
by  virtue  of  the  states'  sovereign  authority.] 

"  Impeachment  in  the  several  states  will  afford  them  opportunities  of  exert- 
ing the  most  dignified  and  awful  powers  of  sovereignty.  The  people  of  every 
state,  by  their  constitutional  representatives,  may  impeach  the  public  officer, 
however  great  or  daring,  who  shall  presume  to  violate  their  exclusive  rights, 
or  offend  against  the  peace  and  dignity  of  their  commonwealth ;  and  may  punish 
him,  on  conviction,  by  fine,  imprisonment  or  death,  without  any  possible  inter- 
ference of  congress. 

"  But,  gentlemen,  the  subject  is  inexhaustible.  Every  section  in  the  con- 
stitution, as  we  peruse  it,  affords  new  ideas  opposed  to  consolidation.  .  .  . 
Thinking,  as  you  did,  consolidation  was  intended,  and  would  take  place, 
.  .  .  you  would  have  been  criminal  in  assenting  to  the  plan  proposed." 

Ibid.,  1788,  contains  an  address  to  the  freemen  of  South  Carolina  on  the 
federal  constitution,  by  Dr.  Ramsay  : 

"You  have  at  this  time,  a  new  federal  constitution  proposed  for  your  con- 
sideration. .  .  . 

"  First.  It  is  the  manifest  interest  of  these  states  to  be  united.  [The  weak- 
ness of  South  Carolina,  and  the  need  of  protection,  are  the  grounds  of  his 
appealing  to  strengthen  the  federal  government.] 

"...  Second.  If  the  thirteen  states  are  to  be  united  in  reality,  as  well  as 
in  name,  the  obvious  principle  of  the  union  will  be  that  the  congress,  or  general 
government,  should  have  power  to  regulate  all  general  concerns.  .  .  .  When 
thirteen  persons  constitute  a  family,  each  should  forego  everything  that  is  injuri- 
ous to  the  other  twelve.  .  .  .  When  several  states  combine  in  one  government, 
the  same  principles  must  be  observed." 

Ibid.,  1788,  May  No.  Letter  from  Dr.  Rush  to  Dr.  Ramsay,  speaks  of 
'the  auspicious  event  of  the  ratification  of  the  federal  government  oy  six  of  the 
united  states." 

He  says  the  idea  of  a  bill  of  rights  for  the  federal  constitution  has  been  rea- 
soned and  ridiculed  out  of  the  said  states.  He  speaks  of  two  "  securities  for 
liberty  "  "  in  the  proposed  constitution  of  the  united  states,"  —  "  representa- 
tion and  checks."  "  Without  them  a  volume  of  rights  would  avail  nothing ; 
and  with  them  a  declaration  of  rights  is  absurd  and  unnecessary :  for  the  people 
where  their  liberties  are  committed  to  an  equal  representation,  and  to  a  com- 
pound legislature,  such  as  we  observe  in  the  new  government,  will  always  be 
the  sovereigns  of  their  rulers,  and  hold  all  their  rights  in  their  own  hands.  To 
hold  them  at  the  mercy  of  their  servants  is  disgraceful  to  the  dignity  of  free- 


484  THE  UNION  OF   STATES. 

men.     Men  who  call  for  a  bill  of  rights  have  not  recovered  from  the  habits 
they  acquired  under  the  monarchical  government  of  Great  Britain. 

"  I  have  the  same  opinion  with  the  anti-federalists,  of  the  danger  of  trusting 
arbitrary  power  to  any  single  body  of  men :  but  no  such  power  will  be  com- 
mitted to  our  rulers.  Neither  the  house  of  representatives  nor  the  senate,  nor 
the  president,  can  perform  a  single  legislative  act  by  themselves." 

Ibid.,  1788,  May  number.  Address  of  Tench  Coxe  to  the  members  of  the 
convention  of  Virginia.  He  speaks  of  the  prospective  "  erection  of  Kentucky 
into  an  independent  state,  and  her  becoming  another  member  of  the  new  con- 
federacy ;  "  and  of  New  Jersey  and  Delaware  as  "  the  least  commercial  mem- 
bers of  the  confederacy." 

Gov.  Hancock  to  the  Legislature  of  Massachusetts,  Feb.  27,  1788,  after 
stating  the  ratification  of  the  federal  constitution  by  the  convention  of  Massa- 
chusetts, he  says  "the  objects  of  the  proposed  constitution  are  defence  against 
external  enemies  and  the  promotion  of  tranquillity  and  happiness  among  the 
states.  .  .  .  The  amendments  proposed,  .  .  .  must  meet  the  wishes  of  the 
states."  He  expects  an  exhibition  "on  the  great  theatre  of  the  world,  of 
those  social,  public,  and  private  virtues,  which  give  more  dignity  to  a  people 
possessing  their  own  sovereignty,  than  crowns  and  diadems  afford  to  sovereign 
princes." 

Ibid.,  for  June,  1788.  Continuation  of  Tench  Coxe's  address  to  the  Vir- 
ginia convention : 

"  Should  Virginia  decline  the  new  confederacy,"  Accomac  and  Northampton 
might  wish  to  join  Maryland. 

If  you  "  wish  to  see  manufactures  established  in  Virginia,  .  .  .  you  should 
be  a  part  of  the  new  confederacy  :  "  and  several  times  the  phrase  "  new  con- 
federacy "  is  used  in  the  address. 

"  Should  nine  or  ten  states  adopt  the  constitution,  how  miserable  will  be  the 
condition  of  those  states  who  decline  it." 

Arguing  for  the  confederation  because  of  its  making  the  states  capable  of 
defending  themselves  against  Spain  on  the  south,  and  England  on  the  north, 
he  says :  "We  have  nothing  to  fear  from  either  of  those  quarters,  provided  we 
are  united.  In  this  respect  the  united  states,  under  the  new  constitution,  will 
possess  all  the  advantages  in  America,  which  Henry  IV.  hoped  to  produce  by 
a  general  league  in  Europe ;  with  this  great  difference  in  our  favor,  that  the 
road  to  ours  is  through  well-conducted  and  free  councils,  independently  held 
by  the  states  concerned;  and  his  scheme,  however  useful  and  noble  the  design, 
would  necessarily  have  been  effected  by  force  and  bloodshed." 

Ibid.,  June,  1788.  "  Remarks  on  the  proposed  system  of  federal  govern- 
ment," by  Hon.  Hugh  Williamson,  delegate  from  North  Carolina  to  the  Con- 
tinental convention,  made  to  the  free  men  of  the  county  of  Chowan  and  town 
of  Edenton,  North  Carolina. 

On  the  want  of  security  for  the  freedom  of  the  press,  and  of  a  bill  of  rights, 
he  says  the  citizens  of  the  states  have  "  no  occasion  for  a  second  declaration  of 
rights.  .  .  .  Their  rights  in  the  several  states  have  long  since  been  explained, 
and  secured  by  particular  declarations,  which  make  a  part  of  their  several  con- 
stitutions." 

It  is  perfectly  understood,  that  "under  the  state  government,  and  under 
that  of  congress,  every  right  is  reserved  to  the  individual,  which  he  has  not 
expressly  delegated  to  this,  or  that  legislature. 

"The  other  objections  that  have  been  made  are  that  the  new  plan  absorbs  the 
powers  of  the  several  states,  that  the  national  judiciary  is  too  extensive,  that  a 
standing  army  is  permitted,  that  congress  is  to  regulate  trade,  and  that  the 
several  states  are  prevented  from  taxing  exports." 


APPENDIX  A.    NO.  3.  485 

He  says  as  to  the  1st,  That  "  little  power  is  left  to  the  state :  Let  us  look  at 
the  code"  nine  out  of  ten  of  the  laws  are  domestic,  and  must  be  so.  Hitherto 
you  have  delegated  certain  powers  to  the  congress,  and  other  powers  to  the 
assemblies  of  the  states.  The  portion  that  you  have  delegated  to  congress  is 
found  to  have  been  useless,  because  too  small."  He  argues  for  the  new  system, 
because  it  contains  a  sufficient  delegation  of  powers,  and  he  concludes  on  the 
point  by  showing  that  "  the  claim  of  powers"  in  congress  endangering  states, 
"  is  nothing  better  than  the  empty  whistling  of  a  name.  The  congress  will  be 
chosen  by  yourselves,  as  your  members  of  assembly  are.  They  will  be  crea- 
tures of  your  hands,  and  subject  to  your  advice.  Protected  and  cherished  by 
the  small  addition  of  power  which  you  shall  put  into  their  hands,  you  may 
become  a  great  and  respectable  nation. 

"  It  is  complained  that  the  powers  of  the  national  judiciary  are  too  exten- 
sive. .  .  .  The  powers  that  are  now  to  be  committed  to  the  national  legisla- 
ture, as  they  are  detailed  in  the  8th  section  of  the  first  article,  have  already 
been  chiefly  delegated  to  the  congress  under  one  form  or  another,  except  those 
which  are  contained  in  the  first  paragraph  of  that  section,  and  the  objects  that 
are  now  to  be  submitted  to  the  supreme  judiciary,  or  to  the  inferior  courts,  are 
those  wMch  naturally  arise  from  the  constitutional  laws  of  congress."  He 
then  goes  on  to  show  how  necessary  for  justice  to  "  the  citizens  of  the  different 
states,"  the  investiture  is. 

..."  The  line  that  separates  the  powers  of  the  national  legislature  from 
those  of  the  several  states  is  clearlv  drawn.  The  several  states  deserve  every 
power  that  can  be  exercised  for  the  particular  use  and  comfort  of  the  state. 
They  do  not  yield  a  single  power  which  is  not  purely  of  national  concern ;  nor 
do  they  yield  a  single  power  which  is  not  absolutely  necessary  to  the  safety  and 
prosperity  of  the  nation,  nor  one  that  could  be  employed  to  any  effect  in  the 
hands  of  particular  states.  The  powers  of  the  judiciary  naturally  arise  from 
those  of  the  legislature." 

As  to  the  objection  of  keeping  regular  troops,  he  says :  "  It  is  remarkable 
that  the  same  objection  has  not  been  made  against  the  original  confederation, 
in  which  the  same  grievance  obtained  without  the  same  guards."  No  appro- 
priation for  the  army,  says  he,  can  be  made  for  more  than  two  years.  This 
with  other  obvious  safeguards,  he  thinks  enough  to  prevent  danger  from  stand- 
ing troops.  He  says  further : 

"...  It  is  the  general  opinion  of  my  late  honorable  colleagues,"  that  the  state 
of  "North  Carolina"  will,  under  "the  proposed  system,"  see  "better  times." 

"  The  proposed  system  is  now  in  your  hands,  and  with  it  the  fate  of  your 
country. 

"  But  if  our  constituents  shall  discover  faults  where  we  could  not  find  any, 
or  if  they  shall  suppose  that  a  plan  is  formed  for  abridging  their  liberties,  when 
we  imagined  that  we  had  been  securing  both  liberty  and  property  on  a  more 
stable  foundation,  they  will  at  least  do  us  the  justice  to  charge  those  errors  to 
the  head,  and  not  to  the  heart."  Resolutions,  heretofore  quoted,  of  the  freemen 
of  the  county  of  Chowan,  and  town  of  Edenton,  were  passed  after  the  speech. 

Ibid.,  June,  1788.  A  correspondent  from  Charleston  says:  "If  we  wish  to 
be  a  united  people,  the  states  must  play  into  each  other's  hands  as  much  as 
possible,  and  do  all  they  can  to  serve  each  other,  which  will  cement  us  together, 
so  that  we  shall  not  be  nominally,  but  really  a  united  people." 

"  Philadelphia,  June  2d.     This  day  the  convention  of  Virginia  meets. 

"  The  23a  ult.  the  convention  of  South  Carolina  agreed  to  ratify  the  new 
federal  constitution.  The  votes  on  putting  the  question  stood  —  yeas  149, 
nays  73  —  majority  76.  A  motion  made  by  Gen.  Sumter,  to  postpone  the  fur- 
ther consideration  of  the  constitution,  was  rejected  on  the  21st  —  yeas  89,  nays 
135." 


486  THE  UNION  OF   STATES. 

Some  amendments  were  recommended  by  the  convention.  The  ratification 
was  celebrated  in  Charleston,  by  a  splendid  procession. 

"  June  19th.  A  committee  of  congress  have  reported,  and  congress  has 
agreed,  that  it  is  expedient  that  Kentucky  be  erected  into  an  independent 
state." 

"  June  28th.  The  21st  instant,  the  federal  constitution  was  agreed  to  by  the 
convention  of  New  Hampshire.  The  votes  were — yeas  57,  nays  46." 

"  June  30th.  Last  Wednesday  the  convention  of  Virginia  ratified  the  fed- 
eral constitution.  Yeas  88,  nays  78." 

Ibid.,  for  July,  1788.  Extract  from  letter  of  Gen.  Washington  to  the  propri- 
etors of  the  ship  Federalist,  which  had  been  used  in  the  procession  at  Baltimore, 
"  to  solemnize  the  ratification  of  the  federal  constitution  by  the  state  of  Mary- 
land :"  "  The  unanimity  of  ...  the  state  of  Maryland,  .  .  .  expressed  in  their 
recent  decision  on  the  subject  of  a  general  government,  will  not  be  without  its 
due  efficacy,  etc.  ...  I  cannot  entertain  an  idea  that  the  voice  of  the  conven- 
tion of  this  state,  which  is  now  in  session,  will  be  dissonant  from  that  of  her 
nearly  allied  sister  across  the  Potomac." 

Same  number,  July  16,  1788,  "Numa"  proposes  mode  of  election  of  repre- 
sentatives, and  says,  "when  members  are  thus  chosen  by  the  whole  s*tate,  they 
will  consider  themselves  servants  of  the  whole  state."  "  The  members  of  each 
state  will  be  a  band  of  brothers,"  and  "  will  not  be  swayed  by  local  considera- 
tions." 

Same  number,  July,  1788,  contains  resolutions  of  congress  from  which  the 
following  extracts  are  taken  : 

"  Whereas,  application  has  been  made  to  congress  by  the  legislature  of  Vir- 
ginia and  the  District  of  Kentucky,  for  the  admission  of  said  district  into  the  fed- 
eral  union,"  and  "  congress  "  "  did,  on  the  3d  of  June  last,  resolve  that  it  is 
expedient  that  the  said  district  be  erected  into  a  sovereign  and  independent 
state,  and  a  separate  member  of  the  federal  union : "  since  that,  "  it  appearing 
that  nine  states  have  adopted  the  constitution  of  the  united  states,  lately  sub- 
mitted to  conventions  of  the  people ;  and  whereas,  a  new  confederacy  is  formed 
among  the  ratifying  states,  and  there  is  reason  to  believe  that  the  state  of  Vir- 
ginia, including  the  said  district,  did  on  the  25th  of  June  last,  become  a  mem- 
ber of  the  said  confederacy." 

They  then  go  on  to  conclude  that,  as  they  are  a  congress  under  the  old  confed- 
eracy, and  that  the  proceedings  were  had  in  reference  to  the  old  confederacy, 
both  congress  and  the  promoters  of  the  new  state,  shall  forbear  to  act  until  the 
new  regime,  and  that  they  shall  shape  their  future  course  according  to  that. 

Ibid.,  July,  1788.  Memoranda.  "  The  new  constitution  was  made  and  pro- 
posed by  12  states ;  ratified  in  Pennsylvania  by  delegates  from  12  counties  ;  pro- 
claimed at  Philadelphia  at  12  o'clock ;  on  the  12th  day  of  the  12th  month ;  in 
the  12th  year  of  American  independence." 

Ibid.,  July,  1788.  "  New  York,  July  28,  on  Saturday  evening  at  9  o'clock, 
arrived  the  joyful  tidings  of  the  adoption  of  the  new  constitution  at  Poughkeep- 
sie,  July  25— yeas  30,  nays  25,  majority  5."  [The  truth  is  the  majority 
was  only  3,  — 30  to  27.] 

"Petersburg,  Va.,  July  24.  On  Monday  last,  the  convention  of  North 
Carolina  met  at  Hillsbo rough.  We  learn  there  is  a  considerable  majority 
against  the  new  government ;  but  the  supporters  have  great  hopes,  since  this 
state  has  acceded  to  it." 

Philadelphia,  July  12,  "interesting  crisis;"  "thirteen  states  now  repre- 
sented in  congress."  "  The  report  of  a  respectable  committee  of  that  honorable 
body  to  whom  were  referred  the  ratifications  of  the  new  constitution,  which 
have  been  transmitted  to  them  by  the  several  ratifying  states,  and  other  impor- 


APPENDIX  A.    NO.  3.  487 

tant  matters,  engross  their  attention  at  present.  ...  On  the  question  in  the 
united  states  in  congress  assembled,  for  putting  the  new  constitution  into  opera- 
tion, there  appeared  only  one  dissenting  voice." 

An  elector  writing  from  Frederick,  Maryland,  March  20,  1788,  says,  in 
conclusion  "  that  all  hopes  of  prosperity  under  the  present  confederation  have 
subsided  .  .  .  that  a  new  form  of  government  is  proposed  by  the  authority  of 
the  people  of  twelve  states  in  convention,  and  submitted  to  the  people  of  each 
state  for  their  separate  consideration  and  adoption ;  that  this  constitution  may 
be  rejected,  but  amendments  can  take  place  previous  to  its  adoption,  only  in  a 
convention  of  all  the  states ;  that  after  its  adoption  two-thirds  of  congress,  or 
a  convention  called  at  the  request  of  two-thirds  of  the  states,  may  propose  such 
amendments,  which  shall  become  parts  of  the  constitution  when  ratified  by 
three-fourths  of  the  states  —  and  shall  we  not  conclude  that  defective  as  it  may 
be,  it  is  better  and  safer  than  none  ?  We  have  it  in  our  choice  to  accept  and 
make  it  what  we  want  it,  or  reject  it  and  commit  ourselves  to  chance,  anarchy, 
and  all  the  evils  attendant  on  political  confusion ;  or  peace,  order,  and  pros- 
perity are  subjects  of  our  election." 

Ibid.,  Aug.  1788.  Judge  Eras.  Hopkinsou  — author  of  "  Hail  Columbia  "  — 
writes  an  allegory,  comparing  the  substitution  of  the  new  for  the  old  federal 
plan  to  the  change  of  an  old  for  a  new  roof.  "  To  the  5th  objection  he  an- 
swered that,  the  intention  was  to  make  a  firm  and  substantial  roof  by  uniting 
the  strength  of  the  thirteen  rafters ;  and  that  this  was  so  far  from  annihilating 
the  several  rafters  and  rendering  them  of  no  use,  that  it  was  manifest  from  a 
bare  inspection  of  the  plan,  that,  the  strength  of  each  contributed  to  the  strength 
of  the  whole,  and  that  the  existence  of  each  and  all  were  essentially  necessary 
to  the  whole  fabric  as  a  roof. 

"...  However  the  component  parts  of  the  roof  might  be  combined,  .  .  .  the 
whole  must  necessarily  rest  upon  and  be  supported  by  the  walls "  [the  people]. 

Ibid.,  Aug.  1788.  "  We  learn  that  the  convention  of  North  Carolina  have  not 
absolutely  rejected  the  new  constitution,  but  have  proposed  a  bill  of  rights  .  .  . 
and  amendments,"  which  are  to  be  laid  before  congress  and  the  states  before 
North  Carolina  will  ratify.  "  The  new  constitution  was  discussed  clause  by 
clause  in  committee  of  the  whole  convention,"  and  "  the  above  result  was  had 
by  majority  of  102  —  yeas  184,  nays  82.  ...  Through  the  whole  discussion 
on  this  subject,  the  convention  showed  disposition  to  promote  the  interest  of 
the  union,  .  .  .  but  being  previously  instructed  by  their  constituents,  and 
perceiving  objections  in  the  new  constitution,  they  thought  themselves  justi- 
fied in  postponing  ultimate  decision,  .  .  .  till  it  should  be  reconsidered  by  the 
several  states,  and  such  objections  removed,  as  might  be  found  necessary  for  the 
preservation  of  the  union."  [She  declared  20  rights  and  proposed  26  amend- 
ments. Finally,  when  she  was  satisfied  her  rights  would  be  safe,  she  ratified.] 

Ibid.,  for  Oct.  1788.  Address  to  the  independent  electors  of  the  federal 
government  by  "  A  Republican,"  Boston,  July,  1788  : 

"The  voice  of  eleven  states,  by  their  representatives  in  convention,  has 
decided  in  its  favor;  and  a  majority  of  the  most  important  states  in  the  Ameri- 
can union,  are  ready  to  risk  their  political  happiness  on  the  operation  of  this 
new  system. 

"When  you  adopt  this  instrument  you  have  a  good  mean,  an  excellent 
instrument ;  but  it  is  still  necessary  that  you  should  attend  to  the  use  of  that 
instrument,  and  watch  vigilantly  that  it  be  placed  in  proper  hands." 

Ibid.,  same  date.  "  Thoughts  on  the  constitution  of  Maryland,"  etc.,  by 
James  McHenry : 

"One  is  disposed  to  expect  happiness  and  tranquillity  in  a  government 


488  THE  UNION  OF   STATES. 

founded  in  actual  compact,  wherein  the  people  have  specified  their  peculiar 
rights  and  the  rights  of  the  sovereignty." 

The  writer  says  sovereignty  is  essential  to  the  existence  of  a  republic,  and 
speaks  of  the  general  assembly  as  possessing  sovereignty,  by  which  he  evidently 
means  power  of  government  as  representatives  of  the  people:  for  he,  in  Ihe 
same  passage,  speaks  of  the  need  of  "  frequent  elections,  to  afford  the  people 
an  opportunity  to  change  the  trustees  of  the  sovereignty,  when  of  opinion  that 
01  hers  would  execute  it  more  to  their  satisfaction;  and  this  organization,"  he 
continues,  "  fixes  the  deliberative  powers  with  the  sovereignty,  and  the  elective 
with  the  people."  He  says  again :  "  how  much  to  be  preferred  is  the  situation 
of  a  people  whose  compact,  [the  social  compact]  instead  of  a  right  to  instruct, 
vests  them  with  a  right  to  discontinue !  —  a  right  which  gives  the  people 
efficient  control  over  the  deliberative  power;  for  what  delegate  or  senator, 
desirous  to  be  continued  in  the  sovereignty,  will  venture  to  act  contrary  to  the 
sense  of  his  electors." 

Samuel  Chase,  Esq.,  afterwards  supreme  judge  of  the  united  states,  in  an 
address  to  his  constituents  in  Anne  Arundel  county,  on  the  right  of  instruc- 
tion says,  "as  one  of  your  delegates  I  hold  myself,  .  .  .  bound  to  obey  your 
instructions  in  every  case  in  which  you  please  to  give  them,  or  to  resign  my 
seat." 

Speaking  of  a  certain  subject,  he  says  "  if  you  have  altered  your  opinion  be 
pleased  to  inform  me,  and  I  will  give  up  my  private  judgment,  and  endeavor  to 
carry  in  execution  your  pleasure." 

"  All  lawful  authority  originates  from  the  people,  and  their  power  is  like  the 
light  of  the  sun,  native,  original,  inherent  and  unlimited  by  human  authority. 
Power  in  the  rulers  or  governors  of  the  people,  is  like  the  reflected  light  of  the 
moon  —  and  is  only  borrowed,  delegated,  and  limited  by  the  grant  of  the  people. 
.  .  .  The  two  branches  [of  the  legislature]  have  only  a  derivative  and  delegated 
power.  The  people  create  [them]  and  vest  them  with  legislative  authority,  to 
be  exercised  agreeably  to  the  constitution ;  and  therefore  both  branches  must 
be  equally  the  representatives,  trustees,  and  servants  of  the  people,  and  the 
people  are  equally  the  constituents  of  both.  .  .  .  Our  government  is  a  gov- 
ernment by  representation.  The  people  appoint  representatives  in  the  senate 
and  house  of  delegates  to  transact  the  business  of  making  laws  for  them,  which 
is  impracticable  for  them  to  do  in  person.  From  the  nature  of  a  government 
by  representation,  the  deputies  must  be  subject  to  the  will  of  their  principals,  or 
this  manifest  absurdity  and  plain  consequence  must  follow,  that  a  few  men 
would  be  greater  than  the  whole  community,  and  might  act  in  opposition  to 
the  declared  sense  of  all  their  constituents."  [This  is  precisely  what  has 
occurred  in  the  united  states  government,  i.  e.,  (to  use  the  language  of  Burke) 
they  have  "  changed  from  an  immediate  state  of  procuration  and  delegation  to  a 
course  of  acting  as  from  original  power."  Demosthenes  complained  for  the 
Athenians,  "  that  the  representative  has  now  usurped  the  right  of  the  people, 
and  exercises  an  arbitrary  power  over  his  ancient  and  natural  lord."] 

"  The  right  of  the  people  to  resist  their  rulers  when  they  attempt  to  enslave 
them  is  paramount,  and  not  derived  from  the  form  of  government." 

Ibid.,  October,  1788.  Mr.  Mandrillon,  of  Amsterdam,  author  of  the 
"American  Spectator,"  in  calling  attention  to  the  letter  of  the  convention  to 
congress,  and  to  the  new  constitution,  uses  the  following  language : 

"  As  the  association  of  all  the  states  had  no  other  object  than  the  formation 
of  a  consolidated  republic,  [?]  it  was  essential  to  give  this  union  —  that  is  to 
say,  to  the  government  of  this  federal  republic  —  the  energy  and  force  requisite 
to  accomplish  the  general  design  of  the  league,  without  derogating  from  the 
prerogatives  which  compose  the  sovereignty  and  legislative  authority  of  each 
individual  member  of  the  confederacy." 


APPENDIX  A.    NO.  3.  489 

Ibid.  "  Congress  recommended  the  several  states  to  pass  laws  to  prevent  the 
transportation  of  convicts  from  foreign  countries  into  the  united  states.  The 
assembly  of  Connecticut  have  passed  such  an  act,  Oct.  15,  1788." 

Ibid.  "  Tribunus  "  of  Boston,  tells  what  he  means  by  "  a  free  constitution 
and  government : "  "  What  I  mean  by  a  free  constitution,  is  sucli  a  form  of  a 
commonwealth  as  considers  property  [rights,  individual  or  state?]  existing 
independent  of  government,  and  government  formed  for  the  support  and  pro- 
tection of  it,  and  that  protection  flowing  from  *  standing  promulgated  laws ' 
carried  into  execution  by  '  known  and  authorized  judges,'  and  equally  and  im- 
partially applying  to  each  member  of  the  state.  I  mean,  in  fine,  a  form  of  gov- 
ernment established  by  the  people,  which  secures  to  them  their  property  as 
their  own  against  rapine,  and  under  no  control  of  a  legislature,  and  is  a  law  to 
the  legislative  authority  itself." 

Ibid.,  Oct.,  1788.  The  citizens  of  Tarborough  addressed  Samuel  John- 
ston, Governor  of  North  Carolina,  and  President  of  the  convention  of  North 
Carolina,  which  postponed  ratification,  approving  the  zeal  lie  displayed  in  try- 
ing "  to  connect  the  state  of  North  Carolina  to  the  general  union,"  and  repro- 
bating the  opposition. 

The  governor  replies,  Sept.  3,  1788,  speaking  of  the  endeavors  of  the 
minority  "  to  avoid  a  separation  "  of  the  state  "  from  the  counsels  of  the  united 
states,"  setting  forth  that  in  his  opinion  "  the  citizens  of  the  state  have  been 
at  no  time  averse  to  a  federal  government,  but  that  they  evidently  preferred 
amendments  before  accession;"  and  expressing  the  "hope"  that  "  effectual 
means  "  will  be  used  "  as  soon  as  possible  to  replace  this  state  in  the  union," 
where  alone  she  "  can  be  safe  and  respectable." 

Ibid.,  Oct.,  1788.  Thomas  Mifflin,  President  of  Pennsylvania,  addressing 
the  assembly  of  that  state,  says  : 

"The  principal  difficulties  which  obstructed  the  adoption  of  the  federal 
constitution  have  been  happily  overcome ;  the  prejudice  and  suspicions  that 
were  awakened  by  the  appearance  of  that  system,  have  been  gradually  lulled, 
and  we  can  no  longer  doubt  that  all  those  states  which  have  been  successfully 
allied  to  obtain  the  independence  of  America,  will  again  be  united  in  that  best 
means  of  giving  strength,  dignity,  and  stability  of  national  character." 

Ibid.,  Dec.,  1788.  Among  the  select  poetry  is  an  ode  written  for  the 
occasion  of  the  federal  procession,  New  York,  July,  1788,  which  contains  the 
following :  [all  these  things  show  how  the  political  arrangement  that  was  then 
being  consummated,  was  understood  both  by  public  men,  and  the  public  they 
addressed.] 

VERSE  IV. 

"  Ten  sovereign  states  in  friendship's  league  combined, 
Blest  with  a  government  whose  arms  embrace 
The  dearest  interests  of  the  human  race. 

Behold  the  admired  procession  move  along 
Our  sister  states,  the  happy  ten,  to  greet/' 

VERSE  VII. 

Discord  shall  cease  and  perfect  union  reign, 
And  all  confess  that  sweetly-powerful  chain  — 
The  federal  system  —  which  at  once  unites 
The  thirteen  states  and  all  the  people's  rights. 
Oh  may  those  rights  be  sacred  to  the  end, 
And  to  our  late  posterity  descend  ; 
That  beauteous  structure  flourish  and  expand. 
And  ceaseless  blessings  crown  this  happy  land." 


490  THE  UNION  OF  STATES. 

American  Museum  for  January,  1789,  Nicholas  Collin,  D.  D.  &  M.  A.  P.  S., 
writes  remarks  on  the  proposed  amendments  to  the  federal  constitution. 

He  speaks  of  "  thirteen  sister  republics  debating  ...  on  the  form  of  a  com- 
mon government,"  and  says  some  of  the  proposed  amendments  "  are  repugnant 
to  an  effectual  confederacy."  He  says  "  the  federal  government  is  formed  by 
the  people,  and  for  the  good  of  the  people ;  its  first  object  is  therefore  to  se- 
cure the  grand  interests  of  the  individuals  who  compose  the  states ;  the  second, 
to  preserve  the  political  powers  of  these  states,  is  but  of  an  inferior  quality  and 
subordinate  to  the  first.  It  is  of  the  greatest  moment  to  every  citizen  of 
America  to  be  protected  in  his  life,  property,  liberty,  family  and  all  the 
dear  interests  of  human  nature."  [The  states  are  especially  important  on  this 
account,  and  the  federal  system  was  formed  by  them  to  enable  them  to  do  so. 
They  were  to  protect  the  citizen,  and  the  federal  concern  was  to  protect  them 
in  so  doing.] 

He  speaks  of  certain  things  that  ought  to  "  be  left  to  the  discretion  of  the 
united  states  in  congress  assembled." 

Ibid.,  March,  1789.  The  legislature  of  Virginia,  addressing  congress  on 
the  subject  of  the  convention  for  amendments,  say :  "  The  good  people  of  this 
commonwealth  in  convention  assembled,  having  ratified  the  constitution  sub- 
mitted to  their  consideration.  ...  At  the  same  time  that  from  motives  of 
affection  to  our  sister  states,  the  convention  yielded  their  assent  to  the  ratifi- 
cation, they  gave  proofs  that  they  dreaded  its  operation  under  the  present 
form."  They  then  mention  the  required  amendments.  [All  the  necessary 
ones  were  afterwards  adopted.] 

Resolution  of  the  assembly  of  Pennsylvania,  on  circular  letter  to  the  states, 
from  Virginia  legislature  upon  amendments.  The  assembly  say  they  regret 
"  to  dissent  from  the  opinion  of  that  assembly  upon  any  point  of  common  con- 
cern to  the  two  states,  as  members  of  the  union." 

News  :  Baltimore,  Feb.  13.  "  The  important  day  in  the  annals  of  America 
is  past,  which  conferred  on  a  single  citizen  those  sovereign  powers  that  must 
be  placed  in  one  person,  to  render  a  nation  happy  in  peace,  and  prosperous 
in  war." 

Oration,  July  4,  1788,  by  Hon.  James  M.  Varnum,  one  of  the  judges  of  the 
North  Western  Territory,  at  Marietta,  Ohio : 

After  speaking  of  the'  articles  of  confederation  as  defective,  he  says :  "  And 
but  for  those  friendships  which  have  formed  and  preserved  a  union  sacred  to 
honor,  patriotism,  and  virtue ;  and  but  for  that  superior  wisdom  which  formed 
the  new  plan  of  a  federal  government,  now  rapid  in  its  progress  to  adoption,  the 
confederation  itself,  before  this  day,  would  have  been  dissolved." 

On  July  28,  1788,  C.  W.  Hartley  (aged  13,)  said  at  York,  Pennsylvania, 
in  an  oration :  "  Notwithstanding  all  impediments,  the  constitution  has  been 
adopted  by  ten  of  the  states,  and  it  is  expected  that  the  other  three  will  soon 
follow  the  wise  example." 

Ibid.,  April,  1789.  Fourteen  members  of  the  Pennsylvania  legislature  ad- 
dressing their  constituents,  and  other  freemen  of  Pennsylvania,  in  opposition 
to  calling  a  convention  to  reform  the  constitution  of  Pennsylvania,  m  so  far  as 
it  is  contradictory  to  the  federal  constitution,  say :  "  Because  a  convention  oi 
this  state  with  equal  authority  to  that  of  the  convention  who  framed  your  con- 
stitution, has  already  adopted  the  federal  constitution,  and  thereby  repealed 
every  article  of  your  plan  of  government  which  was  contradictory  to  it." 

They  then  mention  the  adoption  of  the  supreme  law  clause  as  having  this 
effect  and  proceed  as  follows :  "  How  idle  and  fallacious,  then,  is  the  argument 
for  a  change  in  your  plan  of  government  to  make  it  conformable  to  that  of  th 
united  states,  when  these  very  men  know  that  you  have  already,  by  the  highesl 
authority  in  the  state,  made  the  constitution  and  the  laws  of  congress  paramount 
to  all  your  laws,  and  your  constitution,  into  the  bargain." 


APPENDIX  A.    NO.  4.  491 

They  further  urge  waiting  to  see  if  the  constitution  will  not  be  amended.  [I 
quote  the  above  to  show  what  was  considered  the  authority  of  a  convention, 
and  that  it  was  the  same  body  organized  and  authorized  by  the  state,  that 
adopted  the  two  constitutions,  state  and  federal.] 

Ibid.,  for  July,  1789.  Governor  and  council  of  North  Carolina  addressed 
congratulations  to  Gen.  Washington  after  he  had  become  president,  May  10, 
1789  :  "  Though  this  state  be  not  yet  a  member  of  the  union  under  the  new 
form  of  government,  we  look  forward  with  pleasing  hope  to  soon  becoming 
such,  and  in  the  mean  time  consider  ourselves  bound  in  a  common  interest 
and  affection  with  the  other  states,  waiting  only  for  such  alterations  as  will 
remove  the  apprehensions  of  many  of  the  good  citizens  of  this  state,  for  those 
liberties  for  which  they  have  fought  and  suffered  in  common  with  others." 
May  10,  1789. 

Signed.  SAMUEL  JOHNSTON,  Governor. 

JAMES  IKEDELL,  Prest.  of  Council. 

Gen.  Washington  replies:  June  19, 1789,  that  he  "considers  the  letter  .  .  . 
but  as  indicative  of  the  good  dispositions  of  the  citizens  of  your  state  towards 
their  sister  states,  and  of  the  probability  of  their  speedily  acceding  to  the  new 
general  government." 

He  joins  them  in  the  hope  that  the  "  union  will  be  as  perfect,  and  more  safe, 
than  it  has  ever  been." 

He  winds  up  by  saying  he  is  "  impressed  with  the  idea  that  the  citizens  of 
your  state  are  sincerely  attached  to  the  interest,  the  prosperity,  and  the  glory 
of  America ; "  and  that  he  implores  Divine  guidance  in  "  the  counsels  which 
are  shortly  to  be  taken  by  these  delegates  on  a  subject  of  the  most  momentous 
consequence :  I  mean  the  political  relation,  which  is  to  subsist  hereafter,  be- 
tween the  state  of  North  Carolina  and  the  states  now  in  union,  under  the  new 
general  government." 


No.  4 
THE   UNION  OF  STATES. 

Extracts  from  Noah  Webster's  American  Magazine,  and  from  the  Columbian  and 
Massachusetts  Magazines,  1787-1789. 

AMERICAN  MAGAZINE,  1787-88. 

Published  in  New  York  by  Noah  Webster.     The  numbers  are  all  bound  in  one 

volume. 

THESE  extracts  are  of  vast  importance,  because  they  are  the  precise  prin- 
ciples governing  Noah  Webster's  political  views  throughout  his  long  and 
illustrious  career ;  and  they  afford  much  aid  to  enable  the  descendants  of  the 
great  statesman  and  philologist  in  their  pious  duty  of  publishing  a  genuine 
edition  of  the  great  work  of  their  ancestor.  The  italics  are  in  the  text. 

[Extract  from  the  number  for  January,  1788.] 

"The  whole  body  of  people  in  society  is  the  sovereign  power  or  state; 
which  is  called  the  body-politic.  Every  man  forms  a  part  of  tnis  state,  and  so 


492  THE   UNION  OF  STATES. 

has  a  share  in  the  sovereignty ;  at  the  same  time,  as  an  individual,  he  is  a  sub- 
ject of  the  state.  When  a  society  is  large,  the  whole  state  cannot  meet  together 
for  the  purpose  of  making  laws  ;  the  people  therefore  appoint  deputies  or  repre- 
sentatives —  to  act  for  them.  When  these  agents  are  chosen,  and  met  together, 
they  represent  the  whole  state,  and  act  as  the  sovereign  power.  .  .  .  The  peo- 
ple in  free  governments  make  their  own  laws  by  agents  or  representatives,  and 
appoint  the  executive  officers.  An  executive  officer  is  armed  with  the  author- 
ity of  the  whole  state.  ...  He  cannot  do  wrong  unless  he  goes  beyond  the 
bound  of  the  laws." 

Ibid.  "  One  of  the  principal  objections  to  the  new  federal  constitution  is, 
that  it  contains  no  bill  of  rights.  ...  A  bill  of  rights  against  the  encroachment 
of  kings  and  barons,  or  against  any  power  independent  of  the  people,  is  per- 
fectly intelligible.  But  a  bill  of  rights  against  the  encroachments  of  an  elective 
legislature,  that  is,  against  our  own  encroachments  on  ourselves,  is  a  curiosity 
in  government.  ...  In  our  governments  there  is  no  power  of  legislation  inde- 
pendent of  the  people ;  no  power  that  has  an  interest  aetached  from  that  of  the 
public.  Consequently,  there  is  no  power  existing  against  which  it  is  necessary 
to  guard.  While  our  legislatures,  therefore,  remain  elective,  and  the  rulers 
have  the  same  interest  in  the  laws  that  the  subjects  have,  the  rights  of  the  peo- 
ple will  be  perfectly  secure,  without  any  declaration  in  their  favor.  But  this 
is  not  the  principal  point.  I  undertake  to  prove  that  a  standing  •  bill  of  rights 
is  absurd,  because  no  constitutions  in  a  free  government  can  oe  unalterable. 
The  present  generation  have  indeed  a  right  to  declare  what  they  deem  a  privi- 
lege; but  they  have  no  right  to  say  what  the  next  generation  shall  deem  a 
privilege.  A  state  is  a  supreme  corporation  that  never  dies.  Its  powers,  when 
it  acts  for  itself,  are  at  all  times  equally  extensive ;  and  it  has  the  same  rights 
to  repeal  a  law  this  year  as  it  had  to  make  it  the  last.  If,  therefore,  our  pos- 
terity are  bound  by  our  constitutions,  and  can  neither  amend  nor  annul  them, 
tliey  are,  to  all  intents  and  purposes,  our  slaves.  .  .  .  We  have  no  right  to  say 
that  our  posterity  shall  not  be  judges  of  their  own  circumstances.  The  very 
attempt  to  make  perpetual  constitutions,  is  the  assumption  of  a  right  to  control 
the  opinions  of  future  generations,  and  to  legislate  for  those  over  whom  we 
have  as  little  authority  as  we  have  over  a  nation  in  Asia.  .  .  .  There  are,  per- 
haps, many  laws  and  regulations,  which,  from  their  consonance  to  the  eternal 
principles  of  justice,  will  always  be  good  and  conformable  to  the  sense  of  a 
nation.  But  most  institutions  in  society,  by  reason  of  an  increasing  change  of 
circumstances,  either  become  altogether  improper,  or  require  amendments ;  and 
every  nation  has  at  all  times  the  right  of  judging  of  its  circumstances,  and  de- 
termining on  the  propriety  of  changing  its  laws." 

Ibid.  Reviewing  the  Federalist,  he  says  :  Concerning  the  House  of  Repre- 
sentatives, the  writer  sets  forth  that  "  each  state  regulates  the  qualifications  of 
its  own  electors." 

As  to  senators,  "the  appointment  is  to  be  made  by  the  state  legislatures. 
.  .  .  The  equality  of  representation,  which  was  the  result  of  compromise  and 
mutual  concessions,  establishes  the  equal  sovereignty  of  each  state." 

"  The  executive  is  clothed  with  no  more  power  than  is  necessary  to  a  just 
administration  of  the  laws ;  nor  more  than  is  necessary  to  secure  the  rights  of 
the  citizens  and  states." 

As  to  the  judiciary:  "Its  powers  must  necessarily  extend  to  all  legal  ques- 
tions that  arise  under  the  constitution  and  laws  of  the  united  states." 

The  reviewer  quotes  passages  (in  the  Federalist)  directed  against  the  present 
attempt  to  obtain  amendments  as  follows :  "  It  will  require  the  concurrence  of 
thirteen  states,"  but,  the  instrument  once  ratified,  nine  can  do  it.  "Every 
constitution  for  the  united  states,"  says  the  writer  [Hamilton],  "  must  inevita- 


APPENDIX  A.    NO.  4.  493 

bly  consist  of  a  great  variety  of  particulars,  in  which  thirteen  independent  states 
are  to  be  accommodated  in  their  interests,  or  opinions  of  interest.  .  .  .  Hence, 
the  necessity  of  moulding  and  arranging  all  the  particulars,  which  are  to  com- 
pose the  whole,  in  such  a  manner  as  to  satisfy  all  the  parties  to  the  compact ; 
and  hence,  also,  an  immense  multiplication  of  difficulties  and  casualties  in  ob- 
taining the  collective  assent  to  a  final  act.  The  degree  of  that  multiplication 
must  evidently  be,  in  a  ratio  to  the  number  of  particulars,  and  the  number  of 
parties." 

Ibid.,  for  February.  "The  representative  of  a  people  is,  as  to  his  powers, 
in  the  situation  of  an  attorney,  whose  letters  commission  him  to  do  everything 
which  his  constituent  could  do,  were  he  on  the  spot."  [i.  e.  if  his  powers 
were  general ;  if  specific,  he  would  be  confined  thereto.] 

"The  individuals  who  compose  a  political  society  or  state  have  a  sove- 
reign right  to  establish  what  form  of  government  they  please  in  their  own 
territory." 

In  review  of  the  Federalist,  Montesquieu's  idea,  that  republican  government 
is  only  fit  for  small  territory,  is  combated :  "  By  the  modern  practice  of  repre- 
sentation, a  very  large  extent  of  country  may  be  governed  by  the  republican 
form ;  and  even  Montesquieu  himself  admits  that  a  confederation  of  republics 
may  be  so  formed  as  to  unite  the  happiness  of  free  states  with  the  vigor  of 
monarchies.  The  new  constitution  may  be  an  improvement  on  the  Lycian 
league,  which  that  writer  proposes  as  a  model." 

Ibid.  The  editor,  Noah  Webster,  says,  in  reply  to  objections  :  That  the  fed- 
eral constitution  "  will  preserve  our  equal  republican  forms  of  government,  nay 
that  it  is  their  only  firm  support,  and  the  guarantee  of  their  existence.  And, 
if  they  consent  to  the  additions  and  alterations  proposed  by  the  Massachusetts 
convention,  it  is  not  so  much  because  they  think  the  constitution  will  be  the 
better  for  them,  but,  because  they  think  these  additions  will  reconcile  the  op- 
position, and  unite  all  parties." 

Ibid.,  June,  "American  intelligence."  "In  convention  of  the  people  of 
South  Carolina,  by  their  representatives  held,"  etc. :  — 

"  The  convention  having  maturely  considered  the  constitution,  or  form  of 
government,  reported  ...  by  the  convention,  etc.,  ...  do,  in  the  name,  and 
behalf  of  the  people  of  this  state,  hereby  assent  to,  and  ratify,  the  said  con- 
stitution. .  .  .  Done  in  convention,  the  23d  of  May,"  etc. 

News  is  given  of  the  ratification  by  New  Hampshire  —  yeas  57,  nays  46, 
majority  11.  "On  the  arrival  of  this  important  intelligence  —  the  ratification 
by  the  NINTH  STATE,  the  citizens  of  New  York  testified  their  joy  by  the  ring- 
ing of  bells  and  firing  of  cannon." 

It  is  announced  that  "  the  convention  of  the  state  of  New  York  has  just  met, 
Gov.  Clinton,  president,  —  and  that  they  have  determined  to  discuss  the  con- 
stitution by  paragraphs." 

"  State  of  New  Hampshire.  In  convention  of  the  delegates  of  the  people  of 
the  state  of  New  Hampshire,  June  the  21st,  1788  :  The  convention  having  im- 
partially discussed,  and  fully  considered,  the  constitution  for  the  united  states 
of  America,  reported  to  congress  by  the  convention  of  delegates,  etc.,  and 
submitted  to  us  by  resolution  of  the  general  court  of  this  state,  ...  do,  in 
the  name  and  behalf  of  the  people  of  the  state  of  New  Hampshire,  assent  to 
and  ratify,"  etc. 

Ibid.,  Aug.,  1788.  "Letter  dated  Richmond,  August  6,  says  the  con- 
vention of  North  Carolina  had  rejected  the  new  constitution  by  a  majority 
of  100.  New  York  rejected  the  proceedings,  and  Georgia  refused  to  send 
delegates  to  the  first  congress.  And  yet,  both  of  these  states,  two  years 


494  THE  UNION  OF  STATES. 

afterwards,  were  foremost  in  zeal  and  activity  in  supporting  the  indepen- 
dence of  the  united  states." 

"  Delegation  to  congress  from  Massachusetts.  The  Massachusetts  general 
court,  Nov.  4,  1788,  decided:" 

1.  That  the  electors  for  president,  etc.,  are  to  be  chosen  by  the  two  houses 
on  joint  ballot ; 

2.  That  the  senators  shall  be  chosen  by  the  two  houses,  each  having  a 
negative  on  the  other  ; 

3.  That  the  commonwealth  be  divided  into  eight  districts  —  the  inhabitants 
of  each  choosing  a  representative. 

"The  state  of  New  Hampshire  has  chosen  Langdon  and  Bartlette  for 
federal  senators." 

"  Edmond  Randolph  has  resigned  the  governorship  of  Virginia,  to  go  into 
the  house  of  representatives  to  explain  and  defend  the  federal  constitution  to 
the  legislature." 

COLUMBIAN  MAGAZINE,  1786-89. 

The  Columbian  Magazine  of  December,  1786,  strongly  argues  for  a  "  new 
federal  system,"  as  follows  : 

"We  preclude  ourselves  from  the  means  of  calling  forth  our  national 
strength  and  resources,  by  harboring  absurd  jealousies  of  the  great  national 
council.  We  withhold  powers  necessary  to  render  the  federal  government 
efficient,  and  to  unite  the  various  interests  of  the  several  states.  .  .  .  Eacli  state 
is  induced  to  arrogate  to  itself  individually,  that  portion  of  sovereignty,  which 
it  ought  only  to  exercise  in  conjunction  with  others,  as  a  part  of  one  common- 
wealth—  the  empire  of  the  united  states.  .  .  .  Our  political  difficulties  have 
been  principally  occasioned  by  the  want  of  powers  in  congress  adequate  to  the 
government  of  the  united  states.  Let  these  be  granted,"  etc. 

From  the  Columbian  Magazine,  Sept.,  1787:  "The  proposed  plan  of  a 
federal  constitution  is  sanctioned  by  the  federal  convention,  thus :  '  Done  in 
convention  by  the  unanimous  consent  of  the  states  present,  the  17th  day  of 
September,5  etc.,  etc. ;  and  the  project  is  signed  by  states." 

The  following  is  an  extract  from  the  journal : 

"In  convention,  Monday,  Sept.  17,  1787:  present,  the  states  of  New 
Hampshire,  Massachusetts,  Connecticut,  Mr.  Hamilton,  from  New  York,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Carolina,  South 
Carolina,  and  Georgia : 

"  Resolved,  that  the  preceding  constitution,"  etc.  They  then  go  on  to  rec- 
ommend that  it  be  submitted  in  each  state  to  a  convention  elected  by  the 
people  thereof,  and  "  that  as  soon  as  the  conventions  of  nine  states  shall 
have  ratified  it,"  the  congress  shall  provide  for  starting  it  into  effect. 

Ibid.,  March,  1788.  Extracts  from  letter  of  Gen.  Washington,  Feb.  28, 
1788.  "  The  adoption  of  the  constitution  in  Massachusetts  will,  I  presume, 
be  greatly  influential  in  obtaining  a  favorable  determination  upon  it  in  those 
states  where  the  question  is  yet  to  be  agitated.  No  person  can,  at  this 
moment,  pretend  to  say  what  will  be  its  fate  here.  But  from  what  I  can 
collect,  I  have  no  doubt  of  its  being  accepted." 

A  letter  from  Baltimore,  dated  April  28,  says:  "Our  convention  have 
adopted  the  new  government  by  a  great  majority  of  votes  —  63  to  11.  To- 
morrow it  is  to  be  ratified  in  form." 

"  South  Carolina :  In  convention  May  23,  a  motion  was  made  and  seconded, 
'  That  this  convention  do  assent  to,  and  ratify,  the  constitution  agreed  to,  on 
the  17th  of  September  last,  by  the  convention  of  the  united  states  of  America, 


APPENDIX  A.    NO.  4.  495 

held  at  Philadelphia.'     The  yeas  and  nays  being  called  for  —  were  ayes  149, 
nays  73,  majority  76." 

Ibid.,  July,  1788.  "On  Friday,  July  4,  1788,  the  citizens  of  Philadelphia 
commemorated  American  independence,  and  the  ratification  of  the  federal  con- 
stitution by  ten  of  the  united  states."  At  a  previous  meeting  of  the  citizens, 
they  had  agreed  "  to  celebrate  the  adoption  of  the  federal  constitution  on  the 
fourth  of  July,  provided  NINE  states  had  then  entered  into  the  union  under 
the  new  system.  When  this  agreement  took  place,  eight  states  had  an- 
nounced their  ratifications,  and  the  conventions  of  the  states  of  New  Hamp- 
shire, Virginia  and  New  York  were  in  session."  Unfavorable  rumors  caused 
much  anxiety  and  suspense.  "  At  length  the  ratification  of  New  Hampshire 
was  received,  .  .  .  and  on  the  evening  of  the  second  of  July,  the  account  of 
the  ratification  by  Virginia  arrived ;  the  satisfaction  of  the  people  was  made 
complete,  and  the  TENTH  pillar  triumphantly  added  to  the  federal  edifice.  .  .  . 
Ten  ships  were  anchored  in  the  Delaware,  to  represent  the  ten  states  that  have 
adopted  the  constitution.  .  .  .  Ten  flags,  borne  by  ten  gentlemen,  represented 
the  ten  states  that  have  adopted  the  constitution."  James  Wilson  made  the 
speech,  saying:  "In  state  after  state,  at  time  after  time,  it  was  ratified — in 
some  states  unanimously." 

Ibid.,  Dec.,  1788.  "The  state  of  Pennsylvania  has  passed  a  law  for  elect- 
ing representatives  to  congress,  under  the  new  constitution,  .  .  .  and  also  for 
the  election  of  electors  for  president." 

Ibid.,  Dec.,  1789.  "TWELFTH  FEDERAL  PILLAR  —  NORTH  CAROLINA.  It 
is  with  a  great  degree  of  satisfaction  we  announce  to  the  public  THE  RATIFI- 
CATION of  the  CONSTITUTION  of  the  UNITED  STATES  by  the  respectable  state  of 
North  Carolina."  The  statement  continues  —  that  it  was  on  the  20th  of  No- 
vember—  "vote,  yeas  193,  nays  75,  majority  118." 

It  had  been  rejected  by  the  same  state  August  1,  1788,  bv  a  maioritv  of 
100,  i.  e.,  188  to  88. 

[Extracts  from  the  Massachusetts  Magazine  for  March,  1789.] 

These  extracts  are  added,  to  show  what  the  leaders  and  the  people  then  un- 
derstood the  American  polity  to  be.  The  constitution  had  then  been  adopted, 
and  the  government  provided  for  had  been  elected,  or  was  being  so ;  and  it 
was  in  that  or  the  following  month  to  go  into  operation. 

The  absolute  integrity  and  sovereignty  of  the  states  as  makers  and  members 
of,  and  actors  in,  the  union,  are  taken  for  granted  throughout. 

"  Summary  of  American  news  and  politics." 

"  NEW  HAMPSHIRE.  This  state  is  now  engaged  in  her  domestic  elections," 
etc.  [In  the  previous  number  she  was  said  to  have  "  completed  "  "  her  federal 
elections."] 

"MASSACHUSETTS  also  engaged  in  her  state  elections.  .  .  .  Seven  of  the 
federal  representatives  of  this  state  are  chosen,"  etc. 

"  CONNECTICUT.  Every  day  adds  to  the  progress  this  state  is  making  in 
manufactures,"  etc.  She  is  complimented  on  the  peaceful  and  "  federal  char- 
acter of  her  citizens." 

"  NEW  YORK.  This  state,  as  we  mentioned  in  our  last,  is  still  torn  by  the 
feuds  of  faction."  It  is  further  said  that  "the  assembly  adjourned"  "without 
appointing  federal  senators."  "  The  choice  of  federal  representatives  for  this 
state  commenced  the  3d  instant." 

"NEW  JERSEY."  "Messrs.  Schureman,  Cadwallader,  Boudinot  and  Sin- 
nickson  are  elected  "  "  representatives  for  that  state." 

"  PENNSYLVANIA.  The  federal  character  of  this  state  is  further  exalted," 
etc.,  etc. 


496  THE  UNION  OF  STATES. 

"  DELAWARE.  Of  this  state,  we  know  but  little.  Her  federal  elections  are 
completed,  and,  enjoying  the  reputation  of  being  the  first  which  acceded  to  the 
new  government,  she  does  not  appear  anxious  to  engage  in  the  discussion  of 
those  great  political  points,  which  have  created  so  much  uneasiness  in  some  of 
her  sister  states." 

"  MARYLAND.  This  state  is  holding  out  inducements  to  congress  to  make 
Baltimore  the  place  of  their  residence,"  etc. 

"  VIRGINIA.  This  state  has  at  length  completed  its  choice  of  ten  representa- 
tives —  eight  of  whom  are  said  to  be  federalists,"  etc. 

"  SOUTH  CAROLINA  AND  GEORGIA.  From  these  states  we  have  received  no 
other  information  since  our  last,  than  that  their  electors  have  given  a  unani- 
mous vote  in  favor  of  his  Excellency  George  Washington,  Esq.,  as  president 
of  the  united  states,  by  which  the  memoraole  circumstance  is  authenticated 
that  the  voice  of  the  WHOLE  CONTINENT  has  called  our  Fabius  Maximus  once 
more  to  rescue  our  country  from  the  inauspicious  ills  that  have  threatened 
her." 

"  VERMONT.  This  state  has  expressed  a  wish  to  be  admitted  a  member  of 
the  union,"  etc. 

"  RHODE  ISLAND.  This  foreign  state  has  again  refused  to  accede  to  a  union 
with  her  late  sisters.  .  .  .  Anxious  of  enjoying  the  protection  of  the  union, 
the  inhabitants  of  Newport,  Providence,  and  other  places  are  determined  to 
sue  for  its  protection,  and  to  be  annexed  to  Massachusetts  or  Connecticut  — 
thereby  to  evince  to  their  perverse  legislature,  that  unless  they  take  measures 
for  a  speedy  adoption  of  the  constitution  their  boasted  sovereignty  as  an  inde- 
pendent state,  will  ere  long  be  at  an  end." 

"  NORTH  CAROLINA.  This  other  foreign  state,  has  lately  evinced  a  disposi- 
tion to  become  a  member  of  the  united  states,"  etc. 


APPENDIX    B. 


THE  CONSTITUTION  OF  THE   UNITED  STATES. 

WITH    THE    PARTIES    TO    IT,    THE    AMENDMENTS,    AND    THE    DIFFERING 
PROVISIONS    OF    THE    CONFEDERATE    CONSTITUTION    OF    1861. 

THE  object  of  this  appendix  is  twofold :  not  only  is  it  to  give  a  full  copy  of 
the  present  federal  constitution,  but  to  exhibit  the  changes  made  by  the  con- 
federate states  in  their  attempt  to  establish  and  enjoy  federal  liberty.  Some 
of  the  changes  were  purposed  to  make  more  plain  the  real  meaning  of  the  con- 
stitution of  1788,  according  to  the  southern  view;  and  others  to  make  the 
federal  system  more  conservative  of  liberty  and  human  rights,  and  more  effec- 
tive in  harnessing  power  and  preventing  usurpation. 

Both  the  federal  and  confederate  constitutions  were  lifeless  plans  as  to  a 
given  state  until  the  breath  of  life  was  breathed  into  it  by  that  state. 

The  federal  was  originally  adopted  by  thirteen  states,  containing  less  than 
four  millions  of  people ;  while  the  confederate  was  adopted  by  nearly  the  same 
number  of  states,  containing  eleven  or  twelve  millions  of  people. 

It  is  not  necessary  to  note  the  constant  change  of  "united"  for  "confeder- 
ate "  to  the  intelligent  reader. 

Precisely  where  the  substitution  of  the  confederate  change  begins,  is  desig- 
nated by  a  star. 

The  only  acts  in  American  history  or  records  which  ever  gave  any  life  or 
validity  to  the  federal  constitution  are  affixed.  They  were  enacted  or  ordained 
by  each  state  in  its  own  exclusive  convention,  which  spoke  its  own  exclusive 
mind.  Webster  forever  settled  this  point  in  his  self-stultifying  speech  of  1833, 
as  follows :  "  Until  the  constitution  was  ratified  by  nine  states,  it  was  but  a 
proposal  —  the  mere  draft  of  an  instrument.  It  was  like  a  deed  drawn  but 
not  executed;  ...  it  was  inoperative  paper;  .  .  .  it  had  no  authority;  it 
spoke  no  language." 

Of  course  the  enacting  or  ordaining  words  affixed,  spoke  it  into  life  and 
validity ;  and  the  object  here  is  to  enable  the  people  to  see  and  know  it. 

THE  CONSTITUTION  OF  THE  UNITED  STATES. 

We,  the  people  of  the  united  states,  in  order  to  form  a  more  perfect  union, 
establish  justice,  insure  domestic  tranquillity,  provide  for  the  common  defence, 
promote  the  general  welfare,  and  secure  the  blessings  of  liberty  to  ourselves 


498          THE  CONSTITUTION  OF  THE   UNITED  STATES. 

and  our  posterity,  do  ordain  and  establish  this  constitution  for  the  united 
states  of  America. 

[We,  the  people  of  the  confederate  states,  each  state  acting  in  its  sovereign  and  independent 
character,  in  order  to  form  a  permanent  federal  government,  establish  justice,  insure  domestic  tran- 
quillity, and  secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  invoking  the  favor  and 
guidance  of  Almighty  God,  do  ordain  and  establish  this  constitution  for  "the  confederate  states  of 
America,] 

ARTICLE  I. 

SECTION   I. 

All  legislative  powers  herein  *  granted  shall  be  vested  in  a  congress  of  the 
united  states,  which  shall  consist  of  a  senate  and  house  of  representatives. 

["  delegated  "  is  used  instead  of  "  granted  "  in  the  confederate  instrument.] 


SECTION  II. 

1.  The  house  of  representatives  shall  be  composed  of  members  chosen  every 
second  year  by  the  people  of  the  several  states,  and  the  electors  in  each  state 
shall  *  have  the  qualifications  requisite  for  electors  of  the  most  numerous  branch 
of  the  state  legislature. 

[be  citizens  of  the  confederate  states.    But  no  person  of  foreign  birth,  and  not  a  citizen  of  the 
confederate  states,  shall  be  allowed  to  vote  for  any  officer,  civil  or  political,  state  or  federal.] 

2.  No  person  shall  be  a  representative  who  shall  not  have  attained  to  the 
age  of  twenty-five  years,  and  *  been  seven  years  a  citizen  of  the  united  states, 
and  who  shall  not,  when  elected,  be  an  inhabitant  of  that  state  in  which  he 
shall  be  chosen. 

[be  a  citizen  of  the  confederate  states.] 

3.  Representatives  and  direct  taxes  shall  be  apportioned  among  the  several 
states  which  may  be  included  within  this  union,  according  to  their  respective 
numbers,  which  shall  be  determined  by  adding  to  the  whole  number  of  free 
persons,  including  those  bound  to  service  for  a  term  of  years,  and  excluding 
Indians  not  taxed,  three-fifths  of  all  other  persons.     The  actual  enumeration 
shall  be  made  within  three  years  after  the  first  meeting  of  the  congress  of  the 
united  states,  and  within  every  subsequent  term  of  ten  years,  in  such  manner 
as  they  by  law  shall  direct.     The  number  of  representatives  shall  not  exceed 
one  for  every  thirty  thousand,  but  each  state  shall  have  at  least  one  representa- 
tive ;  and  until  such  enumeration  shall  be  made,  the  state  of  New  Hampshire 
shall  be  entitled  to  choose  three;   Massachusetts,  eight;   Rhode  Island  and 
Providence  Plantations,  one ;  Connecticut,  five ;  New  York,  six ;  New  Jersey, 
four;  Pennsylvania,  eight;  Delaware,  one;  Maryland,  six;  Virginia,  ten;  North 
Carolina,  five ;  South  Carolina,  five,  and  Georgia,  three. 

["confederacy"  is  substituted  for  "union"  in  the  beginning;  lower  down  "slaves"  for  "other 
persons  ; "  still  lower  "  fifty  "  is  substituted  for  "  thirty ;  "  and  finally,  from  the  words  "  the  state  of," 
the  conclusion  of  the  article'  is  as  follows :  "  South  Carolina  shall  be  "entitled  to  choose  six  ;  the  state 
of  Georgia,  ten ;  the  state  of  Alabama,  nine  ;  the  state  of  Florida,  two;  the  state  of  Mississippi,  seven; 
the  state  of  Louisiana,  six,  and  the  state  of  Texas,  six."] 

4.  When  vacancies  happen  in  the  representation  from  any  state,  the  executive 
authority  thereof  shall  issue  writs  of  election  to  fill  such  vacancies. 

5.  The  house  of  representatives  shall  choose  their  speaker  and  other  officers; 
and  shall  have  the  sole  power  of  impeachment.* 

[except  that  any  judicial  or  other  federal  officer  resident  or  acting  solely  within  the  limits  of  any 
state,  may  be  impeached  by  a  vote  of  two-thirds  of  both  branches  of  the  legislature  thereof.] 


APPENDIX  B.  499 


SECTION   III. 

1.  The  senate  of  the  united  states  shall  be  composed  of  two  senators  from 
each  state,  chosen  by  the  legislature  thereof,  for  six  years ;  *  and  each  senator 
shall  have  one  vote. 

[at  the  regular  session  next  immediately  preceding  the  commencement  of  the  term  of  service ;  and 
each  senator  shall  have  one  vote.] 

2.  Immediately  after  they  shall  be  assembled  in  consequence  of  the  first 
election;  they  shall  be  divided  as  equally  as  may  be  into  three  classes.     The 
seats  of  the  senators  of  the  first  class  shall  be  vacated  at  the  expiration  of  the 
second  year ;  of  the  second  class  at  the  expiration  of  the  fourth  year,  and  of 
the  third  class  at  the  expiration  of  the  sixth  year,  so  that  one-third  may  be 
chosen  every  second  year ;  and  if  vacancies  happen  by  resignation,  or  other- 
wise, during  the  recess  of  the  legislature  of  any  state,  the  executive  thereof 
may  make  temporary  appointments  until  the  next  meeting  of  the  legislature, 
which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  senator  who  shall  not  have  attained  to  the  age  of 
thirty  years,*  and  been  nine  years  a  citizen  of  the  united  states,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that  state  for  which  he  shall  be  chosen. 

[and  be  a  citizen  of  the  confederate  states,  and  who  shall  not,  when  elected,  be  an  inhabitant  of 
the  state  for  which  he  shall  be  chosen.] 

4.  The  vice-president  of  the  united  states  shall  be  president  of  the  senate, 
but  shall  have  no  vote  unless  they  be  equally  divided. 

5.  The  senate  shall  choose  their  other  officers,  and  also  a  president  pro 
tempore,  in  the  absence  of  the  vice-president,  or  when  he  shall  exercise  the 
office  of  president  of  the  united  states. 

6.  The  senate  shall  have  the  sole  power  to  try  all  impeachments.     When 
sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation.      When  the 
president  of  the  united  states  is  tried,  the  chief  justice  shall  preside ;  and  no 
person  shall  be  convicted  without  the  concurrence  of  two-thirds  of  the  members 
present. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend  further  than  to 
removal  from  office,  and  disqualification  to  hold  and  enjoy  any  office  of  honor, 
trust,  or  profit  under  the  united  states ;  but  the  party  convicted  shall  never- 
theless  be  liable  and  subject  to  indictment,  trial,  judgment,  and  punishment, 
according  to  law. 

SECTION  rv. 

1.  The  times,  places,  and  manner  of  holding  elections  for  senators  and  rep- 
resentatives shall  be  prescribed  in  each  state  by  the  legislature  thereof;*  but 
the  congress  may  at  any  time  by  law  make  or  alter  such  regulations,  except  as 
to  the  places  of  choosing  senators. 

["  subject  to  the  provisions  of  this  constitution,"  are  the  confederate  words  to  go  in  here.] 

2.  The  congress  shall  assemble  at  least  once  in  every  year,  and  such  meeting 
shall  be  on  the  first  Monday  in  December,  unless  they  shall  by  law  appoint  a 
different  day. 

SECTION  v. 

1.  Each  house  shall  be  the  judge  of  the  elections,  returns,  and  qualifications 
of  its  members,  and  a  majority  of  each  shall  constitute  a  quorum  to  do  business ; 
but  a  smaller  number  may  adjourn  from  day  to  day,  and  may  be  authorized  to 
compel  the  attendance  of  absent  members,  in  such  manner  and  under  such 
penalties,  as  each  house  may  provide. 


500    THE  CONSTITUTION  OF  THE  UNITED  STATES. 

2.  Each  house  may  determine  the  rules  of  its  proceedings,  punish  its  mem- 
bers for  disorderly  behavior,  and  with  the  concurrence  of  two-thirds,*  expel  a 
member. 

["  of  the  whole  number,"  are  the  confederate  words.] 

3.  Each  house  shall  keep  a  journal  of  its  proceedings,  and  from  time  to  time 
publish   the   same,  excepting  such  parts  as  may  in  their  judgment  require 
secrecy ;  and  the  yeas  and  nays  of  the  members  of  either  house  on  any  ques- 
tion shall,  at  the  desire  of  one-fifth  of  those  present,  be  entered  on  the  journal. 

4.  Neither  house,  during  the  session  of  congress,  shall,  without  the  consent 
of  the  other,  adjourn  for  more  than  three  days,  nor  to  any  other  place  than 
that  in  which  the  two  houses  shall  be  sitting. 

SECTION  VI. 

1.  The  senators  and  representatives  shall  receive  a  compensation  for  their 
services,  to  be  ascertained  by  law,  and  paid  out  of  the  treasury  of  the  united 
states.     They  shall  in  all  cases  except  treason,  felony,*  and  breach  of  the  peace, 
be  privileged  from  arrest  during  their  attendance  at  the  session  of  their  re- 
spective houses,  and  in  going  to  and  returning  from  the  same ;  and  for  any 
speech  or  debate  in  either  house,  they  shall  not  be  questioned  in  any  other 
place. 

[the  word  '•  felony  "  is  left  out  of  the  confederate  instrument.] 

2.  No  senator  or  representative   shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  office  under  the  authority  of  the  united  states, 
which  shall  have  been  created,  or  the  emoluments  whereof  shall  have  been 
increased  during  such  time ;  and  no  person  holding  any  office  under  the  united 
states,  shall  be  a  member  of  either  house  during  his  continuance  in  office. 

[but  congress  may,  by  law,  grant  to  the  principal  officer  in  each  of  the  executive  departments  a 
seat  upon  the  floor  of  either  house,  with  the  privilege  of  discussing  any  measures  appertaining  to  his 
department.] 

SECTION  VII. 

1.  All  bills  for  raising  revenue  shall  originate  in  the  house  of  representatives ; 
but  the  senate  may  propose  or  concur  with  amendments  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  house  of  representatives  and  the 
senate,  shall,  before  it  becomes  a  law,  be  presented  to  the  president  of  the 
united  states ;  if  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it  with 
his  objections,  to  that  house  in  which  it  shall  have  originated,  who  shall  enter 
the  objections  at  large  on  their  journal,  and  proceed  to  reconsider  it.     If  after 
such  reconsideration  two-thirds  of  that  house  shall  agree  to  pass  the  bill,  it 
shall  be  sent,  together  with  the  objections,  to  the  other  house,  by  which  it 
shall  likewise  be  reconsidered,  and  if  approved  by  two-thirds  of  that  house, 
it  shall  become  a  law.     But  in  all  such  cases  the  votes  of  both  houses  shall  be 
determined  by  yeas  and  nays,  and  the  names  of  the  persons  voting  for  and 
against  the  bill  shall  be  entered  on  the  journal  of  each  house  respectively.     If 
any  bill  shall  not  be  returned  by  the  president  within  ten  days  (Sundays  ex- 
cepted)  after  it  shall  have  been  presented  to  him,  the  same  shall  be  a  law,  in 
like  manner  as  if  he  had  signed  it,  unless  the  congress  by  their  adjournment 
prevent  its  return,  in  which  case  it  shall  not  be  a  law.* 

[The  president  may  approve  any  appropriation  and  disapprove  any  other  appropriation  in  the 
same  bill.  In  such  case  he  shall,  in  signing  the  bill,  designate  the  appropriations  disapproved,  and 
shall  return  a  copy  of  such  appropriations  with  his  objections  to  the  house  in  which  the  bill  shall 
have  originated,  and  the  same  proceedings  shall  then  be  had  as  in  case  of  other  bills  disapproved  by 
the  president.] 


APPENDIX  B.  501 

3.  Every  order,  resolution,  or  vote  to  which  the  concurrence  of  the  senate 
and  house  of  representatives  may  be  necessary  (except  on  a  question  of  adjourn- 
ment), shall  be  presented  to  the  president  of  the  united  states ;  and  before  the 
same  shall  take  effect,  shall  be  approved  by  him,  or  being  disapproved  by  him, 
shall  be  repassed  by  two-thirds  of  the  senate  and  house  of  representatives, 
according  to  the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 

SECTION   VIII. 

The  congress  shall  have  power :  — 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises,*  to  pay  the  debts 
and  provide  for  the  common  defence  and  general  welfare  of  the  united  states ; 
but  all  duties,  imposts,  and  excises  shall  be  uniform  throughout  the  united 
states. 

[for  revenue  necessary  to  pay  the  debts  and  provide  for  the  common  defence,  and  carry  on  the 
government  of  the  confederate  states ;  but  no  bounties  shall  be  granted  from  the  treasury ;  nor 
shall  any  duties  or  taxes  on  importations  from  foreign  nations  be  laid  to  promote  or  foster  any 
branch  of  industry ;  and  all  duties,  imposts,  and  excises  shall  be  uniform  throughout  the  confederate 
states.] 

2.  To  borrow  money  on  the  credit  of  the  united  states ; 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the  several  states, 
and  with  the  Indian  tribes ;  * 

[but  neither  this  nor  any  other  clause  contained  in  the  constitution  shall  ever  be  construed  to 
delegate  the  power  to  congress  to  appropriate  money  for  any  internal  improvement  intended  to 
facilitate  commerce,  except  for  the  purpose  of  furnishing  lights,  beacons,  and  buoys,  and  other  aids 
to  navigation  upon  the  coasts,  and  the  improvement  of  harbors,  and  the  removing  of  obstructions  in 
river  navigation,  in  all  which  cases  such  duties  shall  be  laid  on  the  navigation  facilitated  thereby  as 
may  be  necessary  to  pay  the  costs  and  expenses  thereof.] 

4.  To  establish  a  uniform  rule  of  naturalization,  and  uniform  laws  on  the 
subject  of  bankruptcies,  throughout  the  united  states ;  * 

[but  no  law  of  congress  shall  discharge  any  debt  contracted  before  the  passage  of  the  same.] 
"  uniform  laws  of  naturalization  "  are  words  substituted  in  the  confederate  instrument  for  "  a 
uniform  rule  of  naturalization."] 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin,  and  fix 
the  standard  of  weights  and  measures ; 

6.  To  provide  for  the  punishment  of  counterfeiting  the  securities  and  current 
coin  of  the  united  states; 

7.  To  establish  post-offices  and  post-roads ; 

8.  To  promote  the  progress  of  science  and  useful  arts,  by  securing  for 
limited  times  to  authors  and  inventors  the  exclusive  right  to  their  respective 
writings  and  discoveries ; 

9.  To  constitute  tribunals  inferior  to  the  supreme  court ; 

10.  To  define  and  punish  piracies  and  felonies  committed  on  the  high  seas, 
and  offences  against  the  law  of  nations; 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make  rules 
concerning  captures  on  land  and  water ; 

12.  To  raise  and  support  armies,  but  no  appropriation  of  money  to  that  use 
shall  be  for  a  longer  term  than  two  years ; 

13.  To  provide  and  maintain  a  navy ; 

14.  To  make  rules  for  the  government  and  regulation  of  the  land  and  naval 
forces ; 

15.  To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the  union, 
suppress  insurrections  and  repel  invasions ; 

16.  To  provide  for  organizing,  arming,  and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be  employed  in  the  service  of  the  united 


502          THE  CONSTITUTION  OF  THE  UNITED  STATES. 

states,  reserving  to  the  states  respectively  the  appointment  of  the  officers,  and 
the  authority  of  training  the  militia  according  to  the  discipline  prescribed  by 
congress ; 

17.  To  exercise  exclusive  legislation  in  all  cases,  whatsoever,  over  such 
district  (not  exceeding  ten  miles  square)  as  may,  by  cession*  of  particular 
states,  and  the  acceptance  of  congress,  become  the  seat  of  the  government  of 
the  united  states,  and  to  exercise  like  authority  over  all  places  purchased  by 
the  consent  of  the  legislature  of  the  state  in  which  the  same  shall  be  for  the 
erection  of  forts,  magazines,  arsenals,  dock-yards,  and  other  needful  buildings ; 
and 

[of  one  or  more  states.] 

18.  To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested  by  this  constitu- 
tion in  the  government  of  the  united  states,  or  in  any  department  or  officer 
thereof. 

SECTION   IX. 

1.  The  migration  or  importation  of  such  persons  as  any  of  the  states  now 
existing  shall  think  proper  to  admit,  shall  not  be  prohibited  by  the  congress 
prior  to  the  year  one  thousand  eight  hundred  and  eight,  but  a  tax  or  duty  may 
oe  imposed  upon  such  importation,  not  exceeding  ten  dollars  for  each  person.* 

[1.  The  importation  of  negroes  of  the  African  race  from  any  foreign  country  other  than  the  slave- 
holding  states  or  territories  of  the  united  states  of  America  is  hereby  forbidden ;  and  congress  is 
required  to  pass  such  laws  as  shall  effectually  prevent  the  same.] 

2.  Congress  shall  also  have  the  power  to  prohibit  the  introduction  of  slaves  from  any  state  not  a 
member  of,  or  territory  not  belonging  to  this  confederacy.] 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless 
when  in  cases  of  rebellion  or  invasion  the  public  safety  may  require  it. 

3.  No  bill  of  attainder  or  ex  post  facto  law*  shall  be  passed. 

[or  law  denying  or  impairing  the  right  of  property  in  negro  slaves.] 

4.  No  capitation,  or  other  direct  tax,  shall  be  laid,  unless  in  proportion  to 
the  census  or  enumeration  herein  before  directed  to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  state.*    No 
preference  shall  be  given  by  any  regulation  of  commerce  or  revenue  to  the 
ports  of  one  state  over  those  of  another;  nor  shall  vessels  bound  to,  or  from 
one  state,  be  obliged  to  enter,  clear,  or  pay  duties  in  another. 

[except  by  a  vote  of  two-thirds  of  both  houses.] 

6.  No  money  shall  be  drawn  from  the  treasury,  but  in  consequence   of 
appropriations  made  by  law ;    and  a  regular  statement  and  account  of  the 
receipts  and  expenditure  of  all  public  money  shall  be  published  from  time  to 
time. 

7.  No  title  of  nobility  shall  be  granted  by  the  united  states ;  and  no  person 
holding  any  office  of  profit  or  trust  under  them,  shall  without  the  consent  of 
congress,  accept  of  any  present,  emolument,  office,  or  title  of  any  kind  what- 
ever, from  any  king,  prince,  or  foreign  state. 

[In  this  section  the  numbering  is  somewhat  changed,  but  the  text  of  both  instruments  is  the  same, 
except  in  the  places  noted.  Clauses  9  and  10  of  the  confederate  instrument  are  as  follows:  9.  Con- 
gress shall  appropriate  no  money  from  the  treasury  except  by  a  vote  of  two-thirds  of  both  houses 
taken  by  yeas  and  nays,  unless  it  be  asked  and  estimated  for  by  some  one  of  the  heads  of  depart- 
ments, and  submitted  to  congress  by  the  president;  or  for  the  purpose  of  paying  its  own  expenses 
and  contingencies  •,  or  for  the  payment  of  claims  against  the  confederate  states,  the  justice  of  which 
shall  have  been  judicially  declared  by  a  tribunal  for  the  investigation  of  claims  against  the  govern- 
ment, which  it  is  hereby  made  the  duty  of  congress  to  establish.] 

[lu.  All  bills  appropriating  money  shall  specify  in  federal  currency  the  exact  amount  of  each 
appropriation,  and  the  purposes  for  which  it  is  made ;  and  congress  shall  grant  no  extra  compensa- 


APPENDIX  B>  503 

tion  to  any  public  contractor,  officer,  agent,  or  servant  after  such  contract  shall  have  been  made  or 
such  service  rendered.] 

[Clauses  11-19  inclusive  in  this  section  of  the  confederate  instrument,  are  amendments  1-8  inclu- 
sive in  the  federal  compact.  Clause  20  concludes  the  section  in  the  former,  as  follows:  "20.  Every 
law,  or  resolution  having  the  force  of  law,  shall  relate  to  but  one  subject,  and  that  shall  be  expressed 
in  the  title."] 

SECTION   X. 

1.  No  state  shall  enter  into  any  treaty*  alliance,  or  confederation,  grant 
letters  of  marque  or  reprisal ;  coin  money ;  emit  bills  of  credit ;  make  anything 
but  gold  and  silver  coin  a  tender  in  payment  of  debts;  pass  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation  of  contracts,  or  grant  any 
title  of  nobility. 

[The  confederate  instrument  leaves  out  the  words  "  emit  bills  of  credit."] 

2.  No  state  shall,  without  the  consent  of  the  congress,  lay  any  imposts  or 
duties  on  imports  or  exports,  except  what  may  be  absolutely  necessary  for 
executing  its  inspection  laws ;  and  the  net  produce  of  all  duties  and  imposts, 
laid  by  any  state  on  imports  or  exports,  shall  be  for  the  use  of  the  treasury  of 
the  united  states ;  and  all  such  laws  shall  be  subject  to  the  revision  and  control 
of  the  congress. 

3.  No  state  shall,  without  the  consent  of  congress  lay  any  duty  of  tonnage,* 
keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any  agreement  or 
compact  with  another  state,  or  with  a  foreign  power,  or  engage  in  war,  unless 
actually  invaded,  or  in  such  imminent  danger  as  will  not  admit  of  delay.f 

[except  on  sea-going  vessels  for  the  improvement  of  its  rivers  and  harbors  navigated  by  the  said 
vessels ;  but  such  duties  shall  not  conflict  with  any  treaties  of  the  confederate  states  with  foreign 
nations.  And  any  surplus  of  revenue  thus  derived,  shall,  after  making  such  improvement,  be  paid 
into  the  common  treasury  ;  nor  shall  any  state] 

t  [but  when  any  river  divides  or  flows  through  two  or  more  states,  they  may  enter  into  compacts 
with  each  other  to  improve  the  navigation  thereof.] 

ARTICLE  H. 

SECTION   I. 

1.  The  executive  power  shall  be  vested  in  a  president  of  the  united  states 
of  America.     He  *  shall  hold  his  office  during  the  term  of  four  years,  and, 
together  with  the  vice-president,  chosen  for  the  same  term,  be  elected  as 
follows :  — 

[and  the  vice-president  shall  hold  their  offices  for  the  term  of  six  years ;  but  the  president  shall 
not  be  re-eligible.J 

2.  Each  state  shall  appoint,  in  such  manner  as  the  legislature  thereof  may 
direct,  a  number  of  electors,  equal  to  the  whole  number  of  senators  and  repre- 
sentatives to  which  the  state  may  be  entitled  in  the  congress ;  but  no  senator 
or  representative,  c-r  person  holding  an  office  of  trust  or  profit  under  the  united 
states,  shall  be  appointed  an  elector. 

[*  The  electors  shall  meet  in  their  respective  states,  and  vote  by  ballot  for 
two  persons,  of  whom  one  at  least  shall  not  be  an  inhabitant  of  the  same  state 
with  themselves.  And  they  shall  make  a  list  of  all  the  persons  voted  for,  and 
the  number  of  votes  for  each ;  which  list  they  shall  sign  and  certify,  and  trans- 
mit sealed  to  the  seat  of  the  government  of  the  united  states,  directed  to  the 
president  of  the  senate.  The  president  of  the  senate  shall,  in  the  presence  of 
the  senate  and  house  of  representatives,  open  all  the  certificates,  and  the  votes 
shall  then  be  counted.  The  person  having  the  greatest  number  of  votes  shall 
be  the  president,  if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed ;  and  if  there  be  more  than  one  who  have  such  majority,  and  have 


504          THE   CONSTITUTION  OF  THE  UNITED   STATES. 

an  equal  number  of  votes,  then  the  house  of  representatives  shall  immediately 
choose  by  ballot  one  of  them  for  president;  and  if  no  person  have  a  majority, 
then  from  the  five  highest  on  the  list  the  said  house  shall  in  like  manner  choose 
the  president.*  But  in  choosing  the  president  the  votes  shall  be  taken  by 
states,  the  representation  from  each  state  having  one  vote ;  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from  two-thirds  of  the  states, 
and  a  majority  of  all  the  states  shall  be  necessary  to  a  choice.  In  every  case, 
after  the  choice  of  the  presidentf  the  person  having  the  greatest  number  of 
votes  of  the  electors  shall  be  the  vice-president.  But  if  there  should  remain 
two  or  more  who  have  equal  votes,  the  senate  shall  choose  from  them  by  ballot 
the  vice-president.] 

[This  clause  was  changed  in  1804  for  the  twelfth  amendment ;  and  the  said  twelfth  amendment 
is,  verbatim,  the  provision  of  the  confederate  constitution  on  the  subject.  —  Article  II..  section  1, 
clauses  3,  4  and  5.] 

3.  The  congress  may  determine  the  time  of  choosing  the  electors,  and  on 
the  day  on  which  they  shall  give  their  votes :  which  day  shall  be  the  same 
throughout  the  united  states. 

4.  No  person,  except  a  natural-born  citizen  *  or  a  citizen  of  the  united  states 
at  the  time  of  the  adoption  of  this  constitution,  shall  be  eligible  to  the  office 
of  president ;  neither  shall  any  person  be  eligible  to  that  office  who  shall  not 
have  attained  to  the  age  of  thirty-five  years,  and  been  fourteen  years  a  resident 
within  the  united  states. 

[of  the  confederate  states,  or  a  citizen  thereof  at  the  time  of  the  adoption  of  this  constitution,  or  a 
citizen  theieof  born  in  the  united  states  prior  to  the  20th  of  December,  1860,  shall  be  eligible  to  the 
office  of  president;  neither  shall  any  person  be  eligible  to  that  office,  who  shall  not  have  attained 
the  age  of  thirty-five  years,  and  been  fourteen  years  a  resident  within  the  limits  of  the  confederate 
states  as  they  may  exist  at  the  time  of  his  election.] 

5.  In  case  of  the  removal  of  the  president  from  office,  or  of  his  death,  resig- 
nation, or  inability  to  discharge  the  powers  and  duties  of  the  said  office,  the 
same  shall  devolve  on  the  vice-president,  and  the  congress  may  by  law  provide 
for  the  case  of  removal,  death,  resignation,  or  inability,  both  of  the  president 
and  vice-president,  declaring  what  officer  shall  then  act  as  president,  and  such 
officer  shall  act  accordingly,  until  the  disability  be  removed,  or  a  president 
shall  be  elected. 

6.  The  president  shall  at  stated  times  receive  for  his  services  a  compensation 
which  shall  neither  be  increased  nor  diminished  during  the  period  for  which 
he  shall  have  been  elected,  and  he  shall  not  receive  within  that  period  any 
other  emolument  from  the  united  states,  or  any  of  them. 

7.  Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the  following 
oath  or  affirmation  :  — 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute  the  office  of 
president  of  the  united  states,  and  will,  to  the  best  of  my  ability,  preserve, 
protect,  and  defend  the  constitution  of  the  united  states." 

SECTION   II. 

1.  The  president  shall  be  commander-in-chief  of  the  army  and  navy  of  the 
united  slates,  and  of  the  militia  of  the  several  states,  when  called  into  the 
actual  service  of  the  united  states ;  he  mav  require  the  opinion,  in  writing,  of 
the  principal  officer  in  each  of  the  executive  departments,  upon  any  subject 
relating  to  the  duties  of  their  respective  offices,  and  he  shall  have  power  to 
grant  reprieves  and  pardons  for  offences  against  the  united  states,  except  in 
cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent  of  the  senate, 
to  make  treaties,  provided  two-thirds  of  the  senators  present  concur;  and  he 


APPENDIX  B.  505 

shall  nominate,  and  by  and  with  the  advice  and  consent  of  the  senate,  shall 
appoint  ambassadors,  other  public  ministers  and  consuls,  judges  of  the  supreme 
court,  and  all  other  officers  of  the  united  states,  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  established  by  law ;  but  the 
congress  may  by  law  vest  the  appointment  of  such  inferior  officers,  as  they 
think  proper,  in  the  president  alone,  in  the  courts  of  law,  or  in  the  heads  of 
departments. 

3.  The  president  shall  have  power  to  fill  up  all  vacancies  that  may  happen 
during  the  recess  of  the  senate,  by  granting  commissions  which  shall  expire  at 
the  end  of  their  next  session.* 

[but  no  person  rejected  by  the  senate  shall  be  re-appointed  to  the  same  office  during  the  ensuing 
recess.] 

[In  the  confederate  instrument  the  third  clause  of  section  II.  is  as  follows  :  — 
3.  The  principal  officer  in  each  of  the  executive  departments,  and  all  persons  connected  with  the 
diplomatic  service,  may  be  removed  from  office  at  the  pleasure  of  the  president.  All  other  civil 
officers  of  the  executive  department  may  be  removed  at  any  time  by  the  president,  or  other  appoint- 
ing power,  when  their  services  are  unnecessary,  or  for  dishonesty,  incapacity,  inefficiency,  miscon- 
duct, or  neglect  of  duty ;  and  when  so  removed,' the  removal  shall  be  reported  to  the  senate,  together 
with  the  reason  therefor.] 

SECTION   III. 

He  shall  from  time  to  time  give  to  the  congress  information  of  the  state 
of  the  union,  and  recommend  to  their  consideration  such  measures  as  he  shall 
judge  necessary  and  expedient:  he  may,  on  extraordinary  occasions,  convene 
both  houses,  or  either  of  them,  and  in  case  of  disagreement  between  them, 
with  respect  to  the  time  of  adjournment,  he  may  adjourn  them  to  such  time  as 
he  shall  think  proper ;  he  shall  receive  ambassadors  and  other  public  ministers ; 
he  shall  take  care  that  the  laws  be  faithfully  executed,  and  shall  commission 
all  the  officers  of  the  united  states. 

SECTION   IV. 

The  president,  vice-president,  and  all  civil  officers  of  the  united  states,  shall 
be  removed  from  office  on  impeachment  for,  and  conviction  of,  treason,  bribery, 
or  other  high  crimes  and  misdemeanors. 


ARTICLE  III. 

SECTION   I. 

The  judicial  power  of  the  united  states  shall  be  vested  in  one  supreme  court, 
and  in  such  inferior  courts  as  the  Congress  may  from  time  to  time  ordain  and 
establish.  The  judges,  both  of  the  supreme  and  inferior  courts,  shall  hold 
their  offices  during  good  behavior,  and  shall,  at  stated  times,  receive  for  their 
services  a  compensation,  which  shall  not  be  diminished  during  their  continu- 
ance in  office. 

SECTION  n. 

1.  The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity,*  arising 
under  this  constitution,  the  laws  of  the  united  states,  arid  treaties  made,  or 
which  shall  be  made,  under  their  authority ;  to  all  cases  affecting  ambassadors, 
other  public  ministers,  and  consuls ;  to  all  cases  of  admiralty  and  maritime 
jurisdiction;  to  controversies  to  which  the  united  states  shall  be  a  party;  to 
controversies  between  two  or  more  states ;  between  a  state  and  citizens  of 
another  state ;f  between  citizens  of  different  states;  between  citizens  of  the 


506          THE  CONSTITUTION  OF  THE  UNITED  STATES. 

same  state  claiming  lands  under  grants  of  different  states,  and  between  a  state, 
or  the  citizens  thereof,  and  foreign  states,  citizens  or  subjects.  J 

*  [The  words  "  in  law  and  equity''  left  out  of  the  confederate  instrument.] 

["  Where  the  state  is  plaintiff"  are  words  here  added  in  the  confederate  pact.] 
J  ["  But  no  state  shall  be  sued  by  any  citizen  or  subject  of  any  foreign  state  "  is  a  sentence  added 
to  the  confederate  clause.] 

2.  In  all  cases  affecting  ambassadors,  other  public  ministers,  and  consuls,  and 
those  in  which  a  state  shall  be  party,  the  supreme  court  shall  have  original 
jurisdiction.    In  all  other  cases  before  mentioned,  the  supreme  court  shall  have 
appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions,  and  under 
such  regulations  as  the  congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury, 
and  such  trial  shall  be  held  in  such  state  where  the  said  crime  shall  have  been 
committed;  but  when  not  committed  within  any  state,  the  trial  shall  be  at 
such  place  or  places  as  the  congress  may  by  law  have  directed. 

SECTION   III. 

1.  Treason  against  the  united  states  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving  them  aid  and  comfort.     No  per- 
son shall  be  convicted  of  treason  unless  on  the  testimony  of  two  witnesses  to 
the  same  overt  act,  or  on  confession  in  open  court. 

2.  The  congress  shall  have  power  to  declare  the  punishment  of  treason,  but 
no  attainder  of  treason  shall  work  corruption  of  blood  or  forfeiture,  except 
during  the  life  of  the  person  attainted. 


ARTICLE  IV. 

SECTION   I. 

Full  faith  and  credit  shall  be  given  in  each  state  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  state.  And  the  congress  may  by  gen- 
eral  laws  prescribe  the  manner  in  which  such  acts,  records,  and  proceedings 
shall  be  proved,  and  the  effect  thereof. 

SECTION   II. 

1.  The  citizens  of  each  state  shall  be  entitled  to  all  privileges  and  immunities 
of  citizens  in  the  several  states.* 

[and  shall  have  the  right  of  transit  and  sojourn  in  any  state  of  this  confederacy  with  their  slaves 
and  other  property,  and  the  right  of  property  in  such  slaves  shall  not  be  thereby  impaired.] 

2.  A  person  charged  in  any  state  with  treason,  felony,  or  other  crime,  who 
shall  flee  from  justice,  and  be  "found  in  another  state,  shall,  on  demand  of  the 
executive  authority  of  the  state  from  which  he  fled,  be  delivered  up  to  be 
removed  to  the  state  having  jurisdiction  of  the  crime. 

3.  No  person  held  to  service  or  labor  in  one  state,  under  the  laws  thereof, 
escaping  into  another,  shall,  in  consequence  of  any  law  or  regulation  therein, 
be  discharged  from  such  service  or  labor,  but  shall  be  delivered  up  on  claim  of 
the  party  to  whom  such  service  or  labor  may  be  due.* 

[In  the  confederate  constitution,  the  following  is  substituted :  — 

3.  No  slave  or  other  person  held  to  service  or  labor  in  any  state  or  territory  of  the  confederate 
states,  under  the  laws  thereof,  escaping:  or  lawfully  carried  into  another,  shall,  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from  such  service  or  labor,  but  shall  be  delivered  up  on  claim 
of  the  party  to  whom  such  slave  belongs,  or  to  whom  such  service  or  labor  may  be  due.] 


APPENDIX  B.  507 


SECTION   III. 

1.  New  states  may  be  admitted  by  the  congress  into  this  union ;  *  but  no 
new  state  shall  be  formed  or  erected  within  the  jurisdiction  of  any  other  state ; 
uor  any  state  be  formed  by  the  junction  of  two  or  more  states,  or  parts  of 
states,  without  the  consent  of  the  legislatures  of  the  states  concerned,  as  well 
as  of  the  congress. 

[by  a  vote  of  two-thirds  of  the  whole  house  of  representatives  and  two-thirds  of  the  senate,  the 
senate  voting  by  states.] 

2.  The  congress  shall  have  power  to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the  territory  or  other  property  belonging  to  the 
united  states ;  and  nothing  in  this  constitution  shall  be  so  construed  as  to 
prejudice  any  claims  of  the  united  states,  or  of  any  particular  state.* 

[The  confederate  states  may  acquire  new  territory,  and  congress  shall  have  power  to  legislate  and 
provide  governments  for  the  inhabitants  of  all  territory  belonging  to  the  confederate  states  lying 


without  the  limits  of  the  several  states,  and  may  permit  them,  at  such  time  and  in  such  manner  as  it 

frovide,  to  form  states  to  be  admitted  into  the  confederacy, 
negro  slavery,  as  it  now  exists  in  the  confederate  states,  shall  be  recognized  and  pro- 


tected  by  congress  and  the  territorial  governments,  and  the  inhabitants  of  the  several  confederate 
states  and  territories  shall  have  the  right  to  take  to  such  territory  any  slaves  lawfully  held  by  them 
in  any  of  the  states  or  territories  of  the  confederate  states.] 

SECTION  IV. 

The  united  states  shall  guarantee  to  every  state  in  this  union  a  republican 
form  of  government,  and  shall  protect  each  of  them  against  invasion;  and  on 
application  of  the  legislature,  or  of  the  executive  (when  the  legislature  cannot 
be  convened),  against  domestic  violence. 

ARTICLE  V. 

The  congress,  whenever  two-thirds  of  both  houses  shall  deem  it  necessary, 
shall  propose  amendments  to  this  constitution,  or,  on  the  application  of  the 
legislatures  of  two-thirds  of  the  several  states,  shall  call  a  convention  for  pro- 
posing the  amendments,  which  in  either  case  shall  be  valid  to  all  intents  and 
purposes,  as  part  of  this  constitution  when  ratified  by  the  legislatures  of  three- 
fourths  of  the  several  states,  or  by  conventions  in  three-fourths  thereof,  as  the 
one  or  the  other  mode  of  ratification  may  be  pro-posed  by  the  congress,  provided 
that  no  amendment  which  may  be  made  prior  to  the  year  one  thousand  eight 
hundred  and  eight  shall  in  any  manner  affect  the  first  and  fourth  clauses  in 
the  ninth  section  of  the  first  article;  and  that  no  state,  without  its  consent, 
shall  be  deprived  of  its  equal  suffrage  in  the  senate.* 

[Upon  the  demand  of  any  three  states,  legally  assembled  in  their  several  conventions,  the  congress 
shall  summon  a  convention  of  all  the  states  to  take  into  consideration  such  amendments  to  the  con- 
stitution as  (he  said  states  shall  concur  in  suggesting  at  the  time  when  the  said  demand  is  made  ;  and 
should  any  of  the  proposed  amendments  to  the  constitution  be  agreed  on  by  the  said  convention  — 
voting  by  states— and  the  same  be  ratified  by  the  legislatures  of  two-thirds'of  the  several  states,  or 
by  conventions  in  two-thirds  thereof,  as  the  one  or  the  other  mode  of  ratification  may  be  proposed 
by  the  general  convention,  they  shall  henceforward  form  a  part  of  this  constitution.  But  no  state 
shall,  without  its  consent,  be  deprived  of  its  equal  representation  in  the  senate.] 

ARTICLE  VL 

1.  All  debts  contracted  and  engagements  entered  into,  before  the  adoption 
of  this  constitution,  shall  be  as  valid  against  the  united  states  under  this  con- 
stitution, as  under  the  confederation.* 

["under  the  provisional  government"  are  the  confederate  words  concluding  above  clause,  which 
is  the  second  in  the  confederate  instrument  —  the  first  being  as  follows  :  — 


508 


THE  CONSTITUTION  OF  THE  UNITED  STATES. 


1.  The  government  established  by  this  constitution  is  the  successor  of  the  provisional  government 
of  the  confederate  states  of  America,  and  all  the  laws  passed  by  the  latter  shall  continue  in  force, 
until  the  same  shall  be  repealed  or  modified ;  and  all  the  officers  appointed  by  the  same   shall  remain 
in  office  until  their  successors  are  appointed  and  qualified,  or  the  offices  abolished.] 

2.  This  constitution  and  the  laws  of  the  united  states  which  shall  be  made  in 
pursuance  thereof;  and  all  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  united  states,  shall  be  the  supreme  law  of  the  laud ;  and  the 
judges  in  every  state  shall  be  bound  thereby,  anything  in  the  constitution  or 
laws  of  any  state  to  the  contrary  notwithstanding. 

3.  The  senators  and  representatives  before  mentioned,  and  the  members  of 
the  several  state  legislatures,  and  all  executive  and  judicial  officers,  both  of 
the  united  states  and  the  several  states,  shall  be  bound  by  oath  or  affirmation 
to  support  this  constitution ;  but  no  religious  test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust  under  the  united  states. 


ARTICLE  VIL 

The  ratification  of  the  conventions  of  nine  states,  shall  be  sufficient  for  the 
establishment  of  this  constitution  between  the  states  so  ratifying  the  same.* 

[1.  The  ratification  of  the  conventions  of  five  states  shall  be  sufficient  for  the  establishment  of  this 
constitution  between  the  states  so  ratifying  the  same. 

2.  When  five  states  shall  have  ratified  this  constitution  in  the  manner  before  specified,  the  con- 
gress under  the  provisional  constitution  shall  prescribe  the  time  for  holding  the  election  of  presi- 
dent and  vice-president,  and  for  the  meeting  of  the  electoral  college,  and  for  counting  the  votes  and 
inaugurating  the  president.  They  shall  also  prescribe  the  time  for  holding  the  first  election  of  mem- 
bers of  congress  under  this  constitution,  and  the  time  for  assembling  the  same.  Until  the  assembling 
of  such  congress,  the  congress  under  the  provisional  constitution  shall  continue  to  exercise  the  legis- 
lative powers  granted  them,  not  extending  beyond  the  time  limited  by  the  constitution  of  the  pro- 
visional government.] 


1.  DELAWARE   STATE. 

We,  the  deputies  of  the  people  of  the  Delaware 
state,  in  convention  met  ...  by  these  presents 
do,  in  virtue  of  the  power  to  us  given,  for  and  in 
behalf  of  ourselves  and  our  constituents,  fully, 
freely,  and  entirely  approve  of,  assent  to,  RATIFY 
and  confirm  the  said  constitution.  Done  at  Dover, 
December  7,  1787. 

2.  COMMONWEALTH  OF  PENNSYLVANIA. 

We,  the  delegates  of  the  people  of  the  common- 
wealth of  Pennsylvania,  in  general  convention 
assembled,  do  in  the  name  and  by  the  authority  of 
the  said  people,  assent  to,  and  RATIFY  the  fore- 
going constitution  of  the  united  states  of  America. 
Done  in  convention  at  Philadelphia,  December  12, 
1787. 

3.   STATE  OF  NEW  JERSEY. 

In  convention  of  the  state  of  New  Jersey,  we 
the  delegates  of  the  state,  ...  do  hereby,  for,  and 
on  the  behalf  of  the  people  of  the  said  state  of  New 
Jersey,  agree  to,  RATIFY,  and  confirm  the  pro- 
posed constitution.  Done  December  18, 1787. 

4.  STATE  OF  CONNECTICUT. 

In  the  name  of  the  people  of  the  state  of  Con- 
necticut, we,  the  delegates  of  the  people  of  the 
said  state,  in  general  convention  assembled,  have 
assented  to  and  ratified,  and  by  these  presents  do 
assent  to  and  RATIFY  the  said  constitution.  Done 
January  9,  1788. 

5.  COMMONWEALTH  OF  MASSACHUSETTS. 

The  convention  ...  do  in  the  name  and  in  be- 
half of  the  people  of  the  commonwealth  of  Massa- 


chusetts, assent  to  and  RATIFY  the  said  constitu- 
tion for  the  united  states  of  America.  Done  Feb. 
5, 1788. 

6.  STATE  OF  GEORGIA. 

We  the  delegates  of  the  people  of  the  state  of 
Georgia,  in  convention  met.  ...  do  assent  to, 
RATIFY  and  adopt  the  said  constitution.  Done 
January  2,  1788. 

7.  MARYLAND. 

We  the  delegates  of  the  people  of  the  state  of 
Maryland  do  ...  assent  to  and  RATIFY  the  said 
constitution.  Done  April  28,  1788. 


8.  STATE  OF  SOUTH  CAROLINA. 

The  convention  ...  do,  in  the  name  and  behalf 
of  the  people  of  this  state  hereby  assent  to  and 
RATIFY  the  said  constitution.  Done  May  23, 
1788. 

9.  STATE  OF  NEW  HAMPSHIRE. 

The  convention  ...  do,  in  the  name  and  be- 
half of  the  people  of  the  state  of  New  Hampshire, 
assent  and  RATIFY  the  said  constitution.  Done 
June  21,  1788. 

10.  VIRGINIA. 

We  the  delegates  of  the  people  of  Virginia, .  .  . 
now  met  in  convention,  ...  do  by  these  presents 
assent  to  and  RATIFY  the  cons'titution  recom- 
mended, hereby  announcing  that  it  is  binding 
upon  the  said  people.  Done  June  28, 1788. 


APPENDIX  B.  509 

11.  STATE  OF  NEW  YORK.  the  state  of  North  Carolina,  do  adopt  and  RATIFY 

the  said  constitution.    Done  November  21, 1789. 
We  the  delegates  of  the  people  of  the  state  of 

New  Yojk,  duly  elected  and  met  in  convention,  13.  RHODE  ISLAND. 

...  do,  by  these  presents,  assent  to  and  RATIFY 

the  said  constitution.    Done  at  Poughkeepsie,  July        We  the  delegates  of  the  people  of  the  state,  .  .  . 
26,  1788.  met  in  convention,  ...  dp,  by  these  presents,  as- 

sent to  and  RATIFY  the  said  constitution. 
12.   STATE  OF  NORTH  CAROLINA. 

In  convention,  resolved  that  the  convention,  in 
behalf  of  the  freemen,  citizens  aud  inhabitants  of 


ARTICLES  IN  ADDITION  TO,   AND  AMENDMENT  OF,  THE 

CONSTITUTION  OF  THE  UNITED  STATES  OF  AMERICA, 

PROPOSED     BY     CONGRESS     AND     RATIFIED     BY     THE     LEGISLATURES     OF    THE 

SEVERAL   STATES,   PURSUANT   TO   THE   FIFTH   ARTICLE   OF   THE 

ORIGINAL   CONSTITUTION. 

Amendments  of  1791. 
ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  pro- 
hibiting the  free  exercise  thereof ;  or  abridging  the  freedom  of  speech,  or  of  the 
press ;  or  the  right  of  the  people  peaceably  to  assemble,  and  to  petition  the 
government  for  a  redress  of  grievances. 

ARTICLE  H. 

A  well-regulated  militia  bein^  necessary  to  the  security  of  a  free  state,  the 
right  of  the  people  to  keep  and  bear  arms  shall  not  be  infringed. 

ARTICLE  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  without  the 
consent  of  the  owner,  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed  by 
law. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and 
effects,  against  unreasonable  searches  and  seizures,  shall  not  be  violated,  and 
no  warrants  shall  issue,  but  upon  probable  cause,  supported  by  oath  or 
affirmation,  and  particularly  describing  the  place  to  be  searched,  and  the 
persons  or  things  to  be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  infamous  crime, 
unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in  cases  arising 
in  the  land  or  naval  forces,  or  in  the  militia,  when  in  actual  service  in  time  of 
war  or  public  danger ;  nor  shall  any  person  be  subject  for  the  same  offence  to 
be  twice  put  in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself,  nor  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law ;  nor  shall  private  property  be  taken  for  public  use 
without  just  compensation. 


510          THE  CONSTITUTION  OF  THE  UNITED  STATES. 


ARTICLE  VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury  of  the  state  and  district  wherein  the  crime 
shall  have  been  committed,  which  district  shall  have  been  previously  ascer- 
tained by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  accusation ; 
to  be  confronted  with  the  witnesses  against  him ;  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of  counsel  for  his 
defence. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jurv  shall  be  preserved,  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  court  of  the  united  states,  than  accord- 
ing to  the  rules  of  the  common  law. 

ARTICLE  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punishments  inflicted. 

ARTICLE  IX. 

The  enumeration  in  the  constitution,  of  certain  rights,  shall  not  be  construed 
to  deny  or  disparage  others  retained  by  the  people. 

ARTICLE  X. 

The  powers  not  delegated  to  the  united  states  by  the  constitution,  nor  pro- 
hibited by  it  to  the  states,  are  reserved  to  the  states  respectively,  or  to  the 
people. 

Amendment  of  1798. 
ARTICLE  XI. 

The  judicial  power  of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one  of  the  united 
states  by  citizens  of  another  state,  or  by  citizens  or  subjects  of  any  foreign 
state. 

Amendment  of  1804. 

ARTICLE  XII. 

1.  The  electors  shall  meet  in  their  respective  states,  and  vote  by  ballot  for 
president  and  vice-president,  one  of  whom,  at  least,  shall  not  be  an  inhabitant 
of  the  same  state  with  themselves ;  they  shall  name  in  their  ballots  the  person 
voted  for  as  president,  and  in  distinct  ballots  the  person  voted  for  as  vice- 
president,  and  they  shall  make  distinct,  lists  of  all  persons  voted  for  as  presi- 
dent, and  of  all  persons  voted  for  as  vice-president,  and  of  the  number  of  votes 
for  each,  which  lists  they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat 
of  the  government  of  the  united  states,  directed  to  the  president  of  the  senate. 
The  president  of  the  senate  shall,  in  presence  of  the  senate  and  house  of  repre- 
sentatives, open  all  the  certificates,  and  the  votes  shall  then  be  counted.  The 
person  having  the  greatest  number  of  votes  for  president  shall  be  the  presi- 


APPENDIX  B.  511 

dent,  if  such  number  be  a  majority  of  the  whole  number  of  electors  appointed; 
and  if  no  person  have  such  majority,  then  from  the  persons  having  the  highest 
numbers  not  exceeding  three  on  the  list  of  those  voted  for  as  president,  the 
house  of  representatives  shall  choose  immediately,  by  ballot,  the  president. 
But  in  choosing  the  president,  the  votes  shall  be  taken  by  states,  the  repre- 
sentation from  each  state  having  one  vote ;  a  quorum  for  this  purpose  shall 
consist  of  a  member  or  members  from  two-thirds  of  the  states,  and  a  majority 
of  all  the  states  shall  be  necessary  to  a  choice.  And  if  the  house  of  repre- 
sentatives shall  not  choose  a  president  whenever  the  right  of  choice  shall  de- 
volve upon  them,  before  the  fourth  day  of  March  next  following,  then  the 
vice-president  shall  act  as  president,  as  in  the  case  of  the  death  or  other  con- 
stitutional disability  of  the  president. 

2.  The  person  having  the  greatest  number  of  votes  as  vice-president  shall 
be  the  vice-president,  if  such  number  be  a  majority  of  the  whole  number  of 
electors  appointed ;  and  if  no  person  have  a  majority,  then  from  the  two  high- 
est numbers  on  the  list  the  senate  shall  choose  the  vice-president ;  a  quorum 
for  the  purpose  shall  consist  of  two-thirds  of  the  whole  number  of  senators,  and 
a  majority  of  the  whole  number  shall  be  necessary  to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office  of  president  shall 
be  eligible  to  that  of  vice-president  of  the  united  states. 

Amendment  of  1865. 
ARTICLE  XIII. 

SECTION  1.  Neither  slavery  nor  involuntary  servitude,  except  as  a  punish- 
ment for  crime,  whereof  the  party  shall  have  been  duly  convicted,  shall  exist 
within  the  united  states,  or  any  place  subject  to  their  jurisdiction. 

SECTION  2.  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 

Amendment  of  1868. 
ARTICLE  XIV. 

SECTION  1.  All  persons  born  or  naturalized  in  the  united  states,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  united  states,  and  of  the  state 
wherein  they  reside.  No  state  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  united  states  ;  nor  shall 
any  state  deprive  any  person  of  life,  liberty  or  property  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal  protection  of  its 
laws. 

SECTION  2.  Representatives  shall  be  apportioned  among  the  several  states 
according  to  their  respective  numbers,  counting  the  whole  number  of  persons 
in  each  state,  excluding  Indians  not  taxed.  But  when  the  right  to  vote  at  any 
election,  for  the  choice  of  electors  for  president  and  vice-president  of  the  united 
states,  representatives  in  congress,  the  executive  and  judicial  officers  of  a  state, 
or  the  members  of  the  legislature  thereof,  is  denied  to  any  of  the  male  inhabi- 
tants of  such  state,  being  twenty-one  years  of  age  and  citizens  of  the  united 
states,  or  in  any  way  abridged  except  for  participation  in  rebellion  or  other 
crime,  the  basis  of  representation  therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  be  to  the  whole  number  of  male 
citizens,  twenty -one  years  of  age,  in  such  state. 

SECTION  3.  No  person  shall  be  a  senator  or  representative  in  congress,  or 
elector  of  president  or  vice-president,  or  hold  any  office,  civil  or  military,  under 
the  united  states,  or  any  state,  who,  having  previously  taken  an  oath  as  a 


512          THE  CONSTITUTION  OF   THE  UNITED   STATES. 

member  of  congress,  or  as  an  officer  of  the  united  states,  or  as  a  member  of  any 
state  legislature,  or  as  an  executive  or  judicial  officer  of  any  state,  to  support  the 
constitution  of  the  united  states,  shall  have  engaged  in  insurrection  or  rebel- 
lion against  the  same,  or  given  aid  or  comfort  to  the  enemies  thereof.  But 
congress  may  by  a  vote  of  two-thirds  of  each  house,  remove  such  disability. 

SECTION  4.  The  validity  of  the  public  debt  of  the  united  states,  authorized 
by  law,  including  debts  incurred  for  payment  of  pensions  and  bounties  for  ser- 
vices in  suppressing  insurrection  and  rebellion,  shall  not  be  questioned.  But 
neither  the  united  states  nor  any  state,  shall  assume  or  pay  any  debt  or  obliga- 
tion incurred  in  aid  of  insurrection  or  rebellion  against  the  united  states,  or  any 
claim  for  the  loss  or  emancipation  of  any  slaves ;  but  all  such  debts,  obligations 
and  claims  shall  be  held  illegal  and  void. 

SECTION  5.  The  congress  shall  have  power  to  enforce  by  appropriate  legisla- 
tion, the  provisions  of  this  article. 

Amendment  of  1870. 
ARTICLE  XV. 

SECTION  1.  The  right  of  citizens  of  the  united  states  to  vote  shall  not  be 
denied  or  abridged  by  the  united  states,  or  by  any  state,  on  account  of  race, 
color,  or  previous  condition  of  servitude. 

SECTION  2.  The  congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation. 


THE  ATTESTATION  OF  THE  INSTRUMENT  PROPOSED  BY  THE 

FRAMERS  FOR  A  FEDERAL  CONSTITUTION. 

/ 

To  attest,  authenticate  and  recommend  the  new  plan  of  a  federal  constitution 
to  the  people  of  the  several  states,  the  deputies  to  "  the  convention  of  states  " 
of  1787,  affixed  the  following  words  with  their  names  —  signed  by  states;  but 
as  Daniel  Webster  said,  the  instrument  was  "  inoperative  paper  "  "  till  ratified 
[and  thereby  established]  by  nine  states." 

"  Done  in  convention  by  the  unanimous  consent  of  the  states  present  the 
17th  day  of  September,  A.'  D.  1787,  and  of  the  independence  of  the  U.  S.  A., 
the  12th.  In  witness  whereof  we  have  hereunto  subscribed  our  names. 

GEORGE  WASHINGTON,  President  and  deputy  from  Virginia. 

NEW  HAMPSHIKE. 
John  Langdon.        Nicholas  Gilman. 

MASSACHUSETTS. 
Nathaniel  Gorham.        Rufus  King. 

CONNECTICUT. 
Wm.  Saml.  Johnson.        Roger  Sherman. 

NEW  YORK. 
Alexander  Hamilton. 


APPENDIX  B.  513 

NEW  JERSEY. 

William  Livingston.        David  Brearly. 
William  Patterson.  Jona.  Dayton. 

PENNSYLVANIA. 

Robert  Morris.    James  Wilson.  George  Clymer.        Gouv.  Morris. 

B.  Franklin.        Tho.  Fitzsimmons.         Thomas  Miffliu.        Jared  Ingersoll. 

DELAWARE. 

Geo.  Read.        John  Dickinson.         Gunning  Bedford,  jr. 
Jaco.  Broom.        Richard  Bassett. 

MARYLAND. 
James  McHenry.        Daniel  Carroll.       Dan.  of  St.  Thos.  Jenifer. 

VIRGINIA. 
John  Blair.        James  Madison,  jr. 

NORTH  CAROLINA. 
Win.  Blount.        Richard  Dobbs  Spaight.        Hugh  Williamson. 

SOUTH  CAROLINA. 

J.  Rutledge.  Charles  Cotesworth  Pinckney. 

Charles  Piuckney.     Pierce  Butler. 

GEORGIA. 

William  Few.        Abr.  Baldwin. 
Attest :  WILLIAM  JACKSON,  Secretary. 


THE  ACTS  OF  THE  CONVENTION  AND  OF  CONGRESS. 

The  following  documents  should  be  printed  in  connection  with  the  constitu- 
tion, to  show  our  people  how  completely  the  federal  idea  was  held  in  view  and 
acted  on  by  the  sovereigns  in  making  their  compact,  supreme  law,  and  consti- 
tution of  government. 

1.   THE  RESOLUTIONS  OF  THE  CONVENTION  OF  STATES, 

as  to  "the  states  beginning  to  act  under  the  new  compact" — to  use  the  ex- 
pression of  Washington. 

IN  CONVENTION,  MONDAY,  September  17,  1787.  Present: — The  states  of 
New  Hampshire,  Massachusetts,  Connecticut,  Mr.  Hamilton  from  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Carolina, 
South  Carolina,  and  Georgia. 

33 


514    THE  CONSTITUTION  OF  THE  UNITED  STATES. 

"  Resolved,  That  the  preceding  constitution  be  laid  before  the  united  states  in 
congress  assembled,  and  that  it  it  is  the  opinion  of  this  convention  that  it  should 
afterwards  be  submitted  to  a  convention  of  delegates,  chosen  in  each 
state  by  the  people  thereof,  under  the  recommendation  of  its  legislature, 
for  their  assent  and  ratification,  and  that  each  convention,  assenting  to 
and  ratifying  the  same,  should  give  notice  thereof  to  the  united  states  in  con- 
gress assembled. 

"  Resolved,  That  it  is  the  opinion  of  this  convention  that  as  soon  as  the 
conventions  of  nine  states  shall  have  ratified  this  constitution,  the 
united  states  in  congress  assembled,  should  fix  a  day  on  which  electors  should 
be  appointed  by  the  states  which  shall  have  ratified  the  same,  and  a 
day  on  which  the  electors  should  assemble  to  vote  for  the  president,  and  the 
time  and  place  for  commencing  proceedings  under  this  constitution.  That  after 
such  publication,  the  electors  should  be  appointed,  and  the  senators 
and  representatives ;  that  the  electors  should  meet  on  the  day  fixed  for  the 
election  of  the  president,  and  should  transmit  their  votes  certified,  signed,  sealed 
and  directed,  as  the  constitution  requires,  to  the  secretary  of  the  united  states 
in  congress  assembled ;  that  the  senators  and  representatives  should  convene  at 
the  time  and  place  assigned ;  that  the  senators  should  appoint  a  president  of 
the  senate,  for  the  sole  purpose  of  receiving,  opening  and  counting  the  votes  for 
president ;  and  that,  after  he  shall  be  chosen,  the  congress,  together  with 
the  president,  should,  without  delay,  proceed  to  execute  this  con. 
stitution. 

"  By  the  unanimous  order  of  the  convention/' 

2.   THE  LETTER  OF  WASHINGTON, 

the  president  of  the  convention  of  states,  written  by  its  "  unanimous  order," 
sufficiently  quoted  on  p.  534  infra  ;  and  to  be  found  complete  in  "  The  Consti- 
tution," by  William  Hickey,  p.  188.  It  is  cited  to  prove  that  the  convention 
considered  the  states  to  be  parties  to  approve  or  reject ;  that  the  government 
aimed  at  was  to  be  "  the  federal  government  of  these  states,"  and  that 
the  constitution  was  considered  the  "  delegating  "  of  an  "  extensive  trust." 


3.  THE  ACTION   OF  THE  STATES  IN   CONGRESS. 

"  THE  UNITED  STATES  IN  CONGRESS  ASSEMBLED,  Saturday,  September  13, 
1788.  Congress  assembled.  Present:  —  New  Hampshire,  Massachusetts, 
Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Virginia,  North  Carolina, 
South  Carolina,  and  Georgia ;  and'  from  Rhode  Island  Mr.  Arnold,  and  from 
Delaware  Mr.  Kearny." 

The  following  preamble  and  resolution  were  unanimously  adopted  :  — 
"  Whereas,  the  convention  assembled  in  Philadelphia,  pursuant  to  the  reso- 
lution of  Congress  of  the  21st  of  February,  1787,  did,  on  the  17th  of  Septem- 
ber in  the  same  year,  report  to  the  united  states  in  congress  assembled,  a 
constitution  for  the  people  of  the  united  states ;  whereupon  congress,  on  the 
28th  of  the  same  September,  did  resolve,  unanimously,  '  That  the  said  report, 
with  the  resolutions  and  letter  accompanying  the  same,  be  transmitted  to  the 
several  legislatures,  in  order  to  be  submitted  to  a  convention  of  delegates, 
chosen  in  each  state  by  the  people  thereof,  in  conformity  to  the  resolves  of  the 
convention  made  and  provided  in  that  case ' :  And  whereas  the  constitution 
so  reported  by  the  convention,  and  by  congress  transmitted  to  the  several 
legislatures,  has  been  ratified  in  the  manner  therein  declared  to  be 


APPENDIX  B.  515 

sufficient  for  the  establishment  of  the  same,1  ami  such  ratifications, 

duly  authenticated,  have  been  received  by  congress,  and  are  filed  in  the 
office  of  the  secretary ;  therefore  — 

"  Resolved,  That  the  first  Wednesday  in  June  next  be  the  day  for  appointing 
electors  in  the  several  states  which,  before  the  said  day,  shall  have 
ratified  the  said  constitution  ;  that  the  first  Wednesday  in  February  next 
be  the  day  for  the  electors  to  assemble  in  their  respective  states,  and  vote  for 
a  president ;  and  that  the  first  Wednesday  in  March  next  be  the  time,  and  the 
present  seat  of  congress  (New  York)  the  place,  for  commencing  the  proceedings 
under  the  said  constitution." 

1  Art.  VII.  "  The  ratifications  of  the  conventions  of  nine  states  shall  be  sufficient 
for  the  establishment  of  this  constitution  between  the  states  so  [i.e.  by  conventions] 
ratifying  the  same." 


APPENDIX   C. 


FEDERATION  ALWAYS  INTENDED. 

THE  object  of  the  proofs  in  this  part  of  the  Appendix,  is  to  show  that  from 
the  beginning  to  the  end  of  the  great  movement  that  gave  us  our  present 
constitution,  the  states  and  the  fathers  always  kept  in  mind,  and  acted  by,  the 
idea  and  theory  of  federation.  The  simplest  man  with  these  evidences  at  hand, 
can  crush  the  consolidationists. 

THE  ANNAPOLIS  CONVENTION. 

The  first  evidence  to  present  is  the  report  of  that  body,  which,  as  only  five 
states  were  present,  forebore  to  deliberate  on  the  purposes  of  their  convention, 
but  recommended  that  a  convention  of  commissioners  of  states  should  be  held 
at  Philadelphia,  in  May,  1787,  "to  devise  such  further  provisions  as 
shall  .  .  .  render  the  constitution  of  the  federal  government  ade- 
quate to  the  exigencies  of  the  union."  [I.  Ell.  Deb.  116.] 

The  proposition  of  the  General  Assembly  of  Virginia,  that  led  to  the  Anna- 
polis convention,  is  in  I.  Elliott's  Debates,  p.  115. 

THE    CONGRESS   OF   STATES. 

This  body  on  Feb.  21,  1787,  resolved  unanimously,  that  it  was  expedient 
that  the  states  hold  a  convention  of  their  delegates,  "for  the  sole  and 
express  purpose  of  revising  the  articles  of  Confederation,"  to  "  render 
the  federal  constitution  adequate  to  the  exigencies  of  government, 
and  the  preservation  of  the  union."  [Ibid.  120.] 

Copious  extracts  from  the  above  report  and  resolution  will  be  found  in  this 
Appendix  C  [No.  3]. 


NO.   1. 

THE  CREDENTIALS  OF  MEMBERS  OF  THE  CONVENTION  OF 
STATES  OF  1787. 

STATE   OF  NEW   HAMPSHIRE. 

A.  D.  1787. 

An  act  for  appointing  Deputies  from  this  State  to  the  convention  proposed  to  be 
held  in  the  City  of  Philadelphia,  in  May,  1787,  for  the  purpose  of  revising 
the  federal  constitution. 

WHEREAS,  in  the  formation  of  the  federal  compact,  which  frames  the  bond 
of  union  of  the  American  States,  it  was  not  possible  in  the  infant  state  of  our 


APPENDIX  C.    NO.  1.  517 

republic,  to  devise  a  system  which,  in  the  course  of  time  and  experience,  would 
not  manifest  imperfections  that  it  would  be  necessary  to  reform  ; 

And  whereas,  the  limited  powers,  which,  by  the  articles  of  Confederation, 
are  vested  in  the  Congress  of  the  United  States  have  been  found  far  inadequate 
to  the  enlarged  purposes  which  they  were  intended  to  produce ;  and  whereas 
Congress  hath,  by  repeated  and  most  urgent  representations,  endeavored  to 
awaken  this  and  other  States  to  a  sense,  etc.,  etc. 

Be  it  therefore  enacted,  by  the  Senate  and  Home  of  Representatives  in  General 
Court  convened,  that,  John  Langdon,  John  Pickering,  Nicholas  Gilman  and 
Benjamin  West,  Esqrs.,  be,  and  hereby  are,  appointed  commissioners :  they  or 
any  two  of  them,  are  hereby  authorized  and  empowered,  as  deputies  from  this 
State,  to  meet  at  Philadelphia,  said  convention,  or  any  other  place  to  which 
the  convention  may  be  adjourned,  for  the  purposes  aforesaid,  there  to  confer 
with  such  deputies  as  are,  or  may  be,  appointed  by  the  other  States,  for  similar 
purposes,  and  with  them  to  discuss  and  decide  upon  most  effectual 
means  to  remedy  the  defects  of  our  federal  Union,  and  to  procure  and 
secure  the  enlarged  purposes  which  it  was  intended  to  effect,  and  to  report 
such  an  act  to  the  United  States  in  Congress,  as  when  agreed  to  by  them,  and 
duly  confirmed  by  the  several  States,  will  effectually  provide  for  the  same. 


COMMONWEALTH  OF  MASSACHUSETTS. 

By  his  Excellency  JAMES  BOWDOIN,  Esq.,  Governor  of  the  Commonwealth 
[L.  s.]  of  Massachusetts. 

To  the  honorable  FRANCIS  DANA,  ELBRIDGE  GERRY,  NATHANIEL  GORHAM, 
RUFUS  KING,  and  CALEB  STRONG,  Esqrs.,  Greeting : 

WHEREAS,  Congress  did,  on  the  21st  day  of  February,  A.  D.  1787,  resolve, 
"  That,  in  the  opinion  of  Congress,  it  is  expedient  that,  on  the  second  Monday 
in  May  next,  a  convention  of  delegates,  who  shall  have  been  appointed  by  the 
several  States,  be  held  at  Philadelphia,  for  the  sole  and  express  purpose 
of  revising  the  articles  of  Confederation,  and  reporting  to  Congress  and 
the  several  legislatures  such  alterations  therein,  as  shall,  when  agreed  to  in 
Congress,  and  confirmed  by  the  States,  render  the  federal  constitu- 
tion adequate  to  the  exigencies  of  government  and  the  preservation 
of  the  Union;"  And,  whereas,  the  Gen.  Court  have  constituted  and  ap- 
pointed you  their  delegates,  to  attend  and  represent  this  commonwealth  in  the 
said  proposed  convention,  and  have,  by  a  resolution  of  theirs  of  the  10th  of 
March  last,  requested  me  to  commission  you  for  that  purpose  : 

Now,  therefore,  know  ye  That  in  pursuance  of  the  resolutions  aforesaid,  I  do 
by  these  presents,  commission  you,  the  said  Francis  Dana,  Elbridge  Gerry, 
Nathaniel  Gorham,  Rufus  King,  and  Caleb  Strong,  Esqrs.,  or  any  three  of 
you,  to  meet  such  delegates  as  may  be  appointed  by  other,  or  any  of  the 
other  States  in  the  union,  to  meet  in  convention  at  Philadelphia,  at  the 
time  and  for  the  purposes  aforesaid. 

In  testimony  whereof,  I  have  caused  the  public  seal  of  the  commonwealth 
aforesaid  to  be  hereunto  affixed. 

Given  at  the  Council  Chamber  in  Boston,  the  9th  day  of  April,  A.  D.  1787. 

JAMES  BOWDOIN. 


518         FEDERATION  ALWAYS  INTENDED. 


STATE  OF  CONNECTICUT. 

At  a  General  Assembly  of  the  State  of  Connecticut,  in.  America,  holden  at 
[L.  s.]  Hartford,  on  the  second  Thursday  of  May,  1787. 

An  act  for  appointing  Delegates  to  meet  in  Convention  of  the  States,  to  be 
held  in  Philadelphia,  on  the  second  Monday  of  May,  instant. 

WHEREAS,  the  Congress  of  the  United  States,  by  their  act  of  the  21st  of 
February,  1787,  have  recommended  that,  on  the  second  Monday  of  May  inst., 
a  Convention  of  delegates,  who  shall  have  been  appointed  by  the  several  states, 
be  held  at  Philadelphia,  for  the  sole  and  express  purpose  of  revising  the 
Articles  of  Confederation,  — 

Be  it  enacted  by  the  Governor,  council,  and  representatives,  in  General 
Court  assembled,  and  by  the  authority  of  the  same,  That  the  Hon.  William 
Samuel  Johnson,  Roger  Sherman,  and  Oliver  Ellsworth,  Esqrs.,  be,  and  they 
are,  hereby,  appointed  delegates  to  attend  said  Convention,  ...  To  represent 
this  state  therein,  and  to  confer  with  such  delegates  appointed  by  the  several 
states,  for  the  purpose  mentioned  in  the  said  act  of  Congress,  that  may  be 
present  and  duly  empowered  to  sit  in  said  convention,  and  to  discuss  upon 
such  alterations  and  provisions,  agreeably  to  the  general  principles 
of  republican  government,  as  they  shall  think  proper  to  render  the 
Federal  Constitution  adequate  to  the  exigencies  of  government,  and 
the  preservation  of  the  Union,  and  they  further  directed,  pursuant  to  the 
said  act  of  Congress,  to  report  sucli  alterations  and  provisions  as  may  be  agreed 
to  by  a  majority  of  the  United  States  represented  in  convention,  to  the  Con- 
gress of  the  United  States,  and  to  the  General  Assembly  of  this  state. 

A  true  copy  of  record.  GEORGE  WILLYS, 

Secretary. 


STATE   OF   NEW  YORK. 
In  Assembly  March  6,  1878. 

Resolved,  that  the  Hon.  Robert  Yatf.s,  John  Lansing,  Jun.,  and  Alexander 
Hamilton,  Esqrs.,  be,  and  they  are,  hereby  declared  duly  nominated  and  ap- 
pointed delegates,  on  the  part  of  this  state,  to  meet  such  delegates  as  may  be 
appointed  on  the  part  of  the  other  states,  respectively,  on  the  second  Monday 
in  May  next,  at  Philadelphia,  for  the  sole  and  express  purpose  of  revis- 
ing the  Articles  of  Confederation,  and  reporting  to  Congress,  and  to  the 
several  legislatures,  such  alterations  and  provisions  therein  as  shall, 
when  agreed  to  in  Congress,  and  confirmed  by  the  several  states,  render 
the  Federal  Constitution  adequate  to  the  exigencies  of  government 
and  the  preservation  of  the  Union. 

True  extracts  from  the  Journals  of  the  Assembly. 

JOHN  M'KESSON,  Clerk. 

STATE  OF  NEW  JERSEY. 

His  excellency  William  Livingston  commissions  David  Brearly,  William  C. 
Houston,  William  Patterson,  Jonathan  Dayton,  and  others  "to  meet  such  com- 


APPENDIX  C.    NO.  1.  519 

missioners  as  have  been  or  may  be  appointed  by  the  other  states  in  the  Union  " 
at  Philadelphia,  2d  May,  1787,  to  —  among  other  things  —  "devise  such 
other  provisions  ,is  shall  appear  to  be  necessary  to  render  the  constitu- 
tion of  the  federal  government  adequate  to  the  exigencies  thereof." 
Each  commission  concludes  thus  :  "  In  testimony  whereof  the  great  seal  of  the 
state  is  hereunto  affixed.  Witness  William  Livingston,  Esq.,  Governor  .  .  . 
and  commander  in  chief  in  and  over  the  State  and  territories  thereunto  belong- 
ing ...  at  Trenton  the  23d  of  November  A.  D.  1786,  and  of  our  sovereignty 
and  independence  the  eleventh. 

WILLIAM  LIVINGSTON. 


COMMONWEALTH  OF  PENNSYLVANIA. 

An  Act  appointing  deputies  to  the  Convention  to  be  held  in  the  city  of  Phila- 
delphia, for  the  purpose  of  revising  the  federal  constitution. 

SECTION  1.  Whereas,  the  General  Assembly  of  this  commonwealth,  taking 
into  their  hands  serious  consideration  of  the  representations  heretofore  made  to 
the  legislatures  of  the  several  states  in  the  union,  by  the  United  States  in  Con- 
gress assembled,  and  also  weighing  the  difficulties  under  which  the  confederated 
states  now  labor,  are  fully  convinced  of  the  necessity  of  revising  the  Federal 
Constitution,  for  the  purpose  of  making  such  alterations  and  amendments 
as  the  exigencies  of  our  public  affairs  require :  And  whereas  the  legislature  of 
the  State  of  Virginia  ha,ve  already  passed  an  act  of  that  commonwealth,  em- 
powering certain  commissioners  to  meet  at  the  city  of  Philadelphia,  in  May 
next,  a  convention  of  commissioners  or  deputies  from  the  different  states  ;  and 
the  legislature  of  this  state  are  fully  sensible  of  the  important  advantages  which 
may  be  derived  to  the  United  States,  and  every  of  them,  from  co-operating  with 
the  commonwealth  of  Virginia  and  the  other  states  of  the  confederation,  in  the 
said  design. 

SECTION  2.  Be  it  enacted,  and  it  is  hereby  enacted,  by  the  representatives 
of  the  freemen  of  the  commonwealth  of  Pennsylvania,  in  General  Assembly 
met,  and  by  the  authority  of  the  same,  That  Thomas  Mifflin,  Robert  Morris, 
George  Clymer,  Jared  Ingersoll,  Thomas  Fitzsimmons,  James  Wilson,  and  Gou- 
verneur  Morris,  Esqs.,  are  hereby  appointed  deputies  from  this  state,  to  meet  in 
the  convention  of  the  deputies  of  the  respective  states  of  North  America,  to  be 
held  at  the  city  of  Philadelphia,  on  the  2d  day  of  the  month  of  May  next; 
and  the  said  Thomas  Mifflin,  Robert  Morris,  George  Clymer,  Jared  Ingersoll, 
Thomas  Fitzsimmons,  James  Wilson,  and  Gouverneur  Morris,  Esqs.,  or  any  four 
of  them,  are  hereby  constituted  and  appointed  deputies  from  this  state,  with 
powers  to  meet  such  deputies  as  may  be  appointed  and  authorized  by  the  other 
states,  to  assemble  in  the  said  convention,  at  the  city  aforesaid,  and  join  with 
them  in  devising,  deliberating  on,  and  discussing,  all  such  alterations  and 
further  provisions  as  may  be  necessary  to  render  the  federal  constitu- 
tion fully  adequate  to  the  exigencies  of  the  union,  and  in  reporting 
such  act  or  acts,  for  that  purpose,  to  the  united  states  in  congress  assembled 
as,  when  agreed  to  by  them,  and  duly  confirmed  by  the  several  states,  will 
effectually  provide  for  the  same. 

Enacted  into  a  law  at  Philadelphia,  on  Saturday,  Dec.  30,  in  the  year  of  our 
Lord  1786. 

PETE  ZACHARY  LLOYD, 

Clerk  of  the  General  Assembly. 

Benjamin  Franklin  was  afterwards  added  to  the  deputation. 


520  FEDERATION  ALWAYS   INTENDED. 

DELAWARE  STATE. 

In  the  eleventh  year  of  the  independence  of  the  state  of  Delaware. 

An  act  appointing  deputies  from  this  state  to  the  Convention  proposed  to  be 
held  in  the  City  of  Philadelphia,  for  the  purpose  of  revising  the 
Federal  Constitution. 

Whereas  the  General  Assembly  of  this  state  are  fully  convinced  of  the  neces- 
sity of  revising  the  Federal  Constitution,  and  adding  thereto  such 
provisions  as  may  render  the  same  more  adequate  to  the  exigen- 
cies of  the  Union ;  And  whereas  the  legislature  of  Virginia  have  already 
passed  an  act  of  that  commonwealth,  appointing  and  authorizing  certain  com- 
missioners to  meet,  at  the  city  of  Philadelphia,  in  May  next,  a  convention  of 
commissioners  or  deputies  from  the  different  states ;  and  this  state  being  will- 
ing and  desirous  of  co-operating  with  the  commonwealth  of  Virginia,  and  the 
other  states  of  the  confederation,  in  so  useful  a  decision  : 

Be  it  therefore  enacted  by  the  General  Assembly  of  Delaware,  that  George 
Reed,  Gunning  Bedford,  Jr.,  John  Dickinson,  Richard  Bassett,  and  Jacob  Broom, 
Esqrs.,  are  hereby  appointed  deputies  from  this  state  to  meet  in  the  conven- 
tion deputies  of  other  states  .  .  .  and  to  join  with  them  in  devising,  deliber- 
ating on,  and  discussing,  such  alterations  and  further  provisions  as  may 
be  necessary  to  render  the  Federal  Constitution  adequate  to  the 
exigencies  of  the  Union ;  and  in  reporting  such  act  or  acts,  for  that  pur- 
pose, to  the  United  States  in  Congress  assembled,  as  when  agreed  to  by  them, 
and  duly  confirmed  by  the  several  states,  may  effectually  provide  for  the 
same.  .  .  . 

In  testimony  whereof,  I  have  hereunto  subscribed  my  name,  and  caused  the 
great  seal  of  the  said  state  to  be  affixed  to  these  presents,  at  New  Castle,  the 
2d  day  of  April,  in  the  year  of  our  Lord  1787,  and  in  the  llth  year  of 
the  Independence  of  the  United  States  of  America. 

Attest,  JAMES  BOOTH, 

Secretary.  THOMAS  COLLINS, 

President. 


STATE  OF  MARYLAND. 

An  act  for  the  appointment  of,  and  conferring  powers  on,  deputies  from  this 

state  to  the  Federal  Convention. 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That  the  Hon.  James 
M'Henry,  Daniel  of  St.  Thomas  Jenifer,  Daniel  Carroll,  John  Francis  Mercer, 
and  Luther  Martin,  Esqrs.,  be  appointed  and  authorized,  on  behalf  of  this  state 
to  meet  such  deputies  as  may  be  appointed  and  authorized,  by  any  other  ot  the 
united  states,  to  assemble  in  convention  at  Philadelphia,  for  the  purpose  ot 
revising  the  federal  system,  and  to  join  with  them  in  considering  such  alters 
tions  and  further  provisions  as  may  be  necessary  to  render  the  fed- 
eral constitution  adequate  to  the  exigencies  of  the  Union  ;  and  i 
reporting  such  purpose  to  the  united  states  in  Congress  assembled  as  when 
agreed  to  by  them  and  duly  confirmed  by  the  several  states,  will  effectually  pro- 
vide for  the  same,  etc. 


APPENDIX  C.    NO.  1.  521 

COMMONWEALTH  OF  VIRGINIA. 

General  Assembly  held  in  the  city  of  Richmond,  16th  Oct.,  A.  D.  1786. 

An  act  for  appointing  deputies  from  the  commonwealth  to  a  convention  pro- 
posed to  oe  held  in  the  city  of  Philadelphia,  in  May  next,  for  the  purpose 
of  revising  the  federal  constitution. 

Whereas,  etc.,  etc.  .  .  . 

Be  it  therefore  enacted  by  the  General  Assembly  of  the  commonwealth  of 
Virginia,  That  seven  commissioners  be  appointed,  by  joint  ballot  of  both  houses 
of  Assembly,  who,  or  any  three  of  them,  are  hereby  authorized,  as  deputies 
from  this  commonwealth,  to  meet  such  deputies  as  may  be  appointed  and  au- 
thorized by  other  states,  to  assemble  in  Convention  at  Philadelphia,  as  above 
recommended,  and  to  join  them  in  devising  and  discussing  all  such  alterations 
and  further  provisions  as  may  be  necessary  to  render  the  Federal 
Constitution  adequate  to  the  exigencies  of  the  Union  ;  and  in  report- 
ing  sucli  an  act,  for  that  purpose,  to  the  United  States  in  Congress,  as,  when 
agreed  to  by  them,  and  duly  confirmed  by  the  several  states,  will  effectually 
provide  for  the  same. 

Under  the  above  act  George  Washington,  Patrick  Henry,  Edmund  Ran- 
dolph, John  Blair,  James  Madison,  George  Mason,  and  George  Wythe,  were 
elected  as  the  deputies  of  Virginia.  Patrick  Henry  declining,  James  McClurg 
was,  under  the  law,  appointed  by  Gov.  Randolph  to  fill  the  place. 


THE  STATE  OF  NORTH  CAROLINA. 

To  the  Hon.  ALEXANDER  MARTIN,  Esq.,  Greeting : 

Whereas  our  General  Assembly,  in  their  late  session,  holden  at  Fayetteville, 
by  adjournment,  in  the  month  of  January  last,  did,  by  joint  ballot  of  the  Senate 
and  House  of  Commons,  elect  Richard  Caswell,  Alexander  Martin,  William 
Richardson  Davie,  Richard  Dobbs  Spaight,  and  Willie  Jones,  Esqrs.,  deputies 
to  attend  a  Convention  of  Delegates  from  the  several  United  States  of  America, 
proposed  to  be  held  at  the  city  of  Philadelphia,  in  May  next,  for  the  purpose 
of  revising  the  Federal  Constitution. 

We  do,  therefore,  by  these  presents,  nominate,  commission,  and  appoint  you, 
the  said  Alexander  Martin,  one  of  the  deputies  for  and  in  behalf,  to  meet  with 
our  other  deputies  at  Philadelphia,  on  the  1st  of  May  next,  and  with  them,  or 
any  two  of  them,  to  confer  with  such  deputies  as  may  have  been,  or  shall  be, 
appointed  by  the  other  states,  for  the  purpose  aforesaid:  To  hold,  exercise, 
and  enjoy,  the  appointment  aforesaid,  with  all  powers,  authorities,  and  emolu- 
ments, to  the  same  belonging,  or  in  any  wise  appertaining  —  you  conforming 
in  every  instance,  to  the  act  of  our  said  Assembly,  under  which  you  are 
appointed. 

Witness,  Richard  Caswell,  Esq.,  our  governor,  captain-general,  and  com- 
mander-in-chief,  under  his  hand  and  our  seal,  at  Kinston,  the  24-th  day  of 
February,  in  the  eleventh  year  of  our  independence,  A.  D.  1787.  Rich.  Gas- 
well,  By  his  excellency's  command.  — Winston  Caswell,  P.  Secretary. 

The  deputies  elected  and  commissioned  as  above,  were  Richard  Caswell, 
Alexander  Martin,  William  R.  Davie,  Richard  D.  Spaight,  Willie  Jones,  Wil- 
liam Blount  and  Hugh  Williamson. 


-522  FEDERATION  ALWAYS   INTENDED. 

The  act  of  assembly  declares  that  the  said  deputies  are  "to  meet  and  confer 
with  such  deputies  as  may  be  appointed  by  the  other  states  for  similar  pur- 
poses, and  with  them  to  discuss  and  decide  upon  the  most  effectual  means 
to  remove  the  defects  of  our  federal  union,  and  to  procure  the  en- 
larged purposes  which  it  was  intended  to  effect,  and  that  they  report 
Mieli  an  act  to  the  General  Assembly  of  this  state  as,  when  agreed  to  by  them, 
will  effectually  provide  for  the  same." 


STATE  OF   SOUTH  CAROLINA. 

By  his  excellency,  THOMAS  PINCKNEY,  Esq.,  governor  and  commander-in- 
chief  in  and  over  the  state  aforesaid. 

To  the  Hon.  JOHN  RUTLEDGE,  Esq.,  Greeting : 

By  virtue  of  the  power  and  authority  in  me  vested  by  the  legislature  of  this 
state,  in  their  act  passed  the  8th  day  of  March  last,  I  dp  hereby  commission 
you,  the  said  John  Rutledge,  as  one  of  the  deputies  appointed  from  this  state, 
to  meet  such  deputies  or  commissioners  as  may  be  appointed  and  authorized  by 
other  of  the  United  States,  to  assemble  in  Convention,  at  the  city  of  Philadel- 
phia, in  the  month  of  May  next,  or  as  soon  thereafter  as  may  be,  and  to  join 
with  such  deputies  or  commissioners  (they  being  duly  authorized  and  empow- 
ered) in  devising  and  discussing  all  such  alterations,  clauses,  articles 
and  provisions  as  may  be  thought  necessary  to  render  the  Federal  Con- 
stitution entirely  adequate  to  the  actual  situation  and  future  good 
government  of  the  confederated  states  ;  and  that  you,  together  with  the 
said  deputies  or  commissioners,  or  a  majority  of  them,  who  shall  be  present 
(provided  the  state  be  not  represented  by  less  than  two),  do  join  in  reporting 
such  an  act  to  the  United  States  in  Congress  assembled,  as,  when  approved 
and  agreed  to  by  them,  and  duly  ratified  and  confirmed  by  the  several  states, 
will  effectually  provide  for  the  exigencies  of  the  Union. 

Given  under  my  hand  and  the  great  seal  of  the  state,  in  the  city  of  Charles- 
ton, this  10th  day  of  April,  in  the  year  of  our  Lord  1787,  and  of  the  sove- 
reignty and  independence  of  the  United  States  of  America  the  eleventh. 

THOMAS  PINCKNEY. 

By  his  excellency's  command,  — Peter  Freneau,  Secretary. 
Charles  Pinckney,  Charles  Cotesworth  Pinckney,  and  Pierce  Butler  were 
likewise  appointed  and  commissioned  in  the  same  manner. 


STATE  OF   GEORGIA. 

An  Ordinance  for  the  appointment  of  Deputies  from  this  state,  for  the  Purpose 
of  revising  the  Federal  Constitution. 

Be  it  ordained  by  the  representatives  of  the  freemen  of  the  state  of  Georgia* 
in  General  Assembly  met,  and  by  authority  of  the  same,  that  William  Few, 
Abraham  Baldwin,  William  Pierce,  George  Walton,  William  Houston,  and 
Nathaniel  Pendleton,  Esqrs.,  be,  and  they  are  hereby,  appointed  commissioners, 
who,  or  any  two  or  more  of  them,  are  hereby  authorized,  as  deputies  from  this 
state,  to  meet  such  deputies  as  may  be  appointed  and  authorized  by  other 
states,  to  assemble  in  Convention  at  Philadelphia,  and  to  join  with  them  in 
devising  and  discussing  all  such  alterations  and  further  provisions  as 


APPENDIX  C.    NO.  2.  523 

may  be  necessary  to  render  the  Federal  Constitution  adequate  to 
the  exigencies  of  the  Union,  and  in  reporting  such  an  act  for  that  purpose 
to  the  United  States  in  Congress  assembled,  as  when  agreed  to  by  them,  and 
duly  confirmed  by  the  several  states,  will  effectually  provide  for  the  same. 

The  commissions  issued  to  like  deputies  were  copies  of  the  following  to 
William  Few. 

The  State  of  Georgia,  by  the  grace  of  God,/ra?,  sovereign,  and  independent. 
To  the  Hon.  WM.  FEW,  ESQ.  :  - 

Whereas  you,  the  said  William  Few,  are,  in  and  by  an  ordinance  of  the  General 
Assembly  of  our  said  state,  nominated  and  appointed  a  deputy  to  represent  the 
same  in  a  Convention  of  the  United  States,  to  be  assembled  at  Philadelphia, 
for  the  purposes  of  devising  and  discussing  all  such  alterations  and  further 
provisions  as  may  be  necessary  to  render  the  Federal  Constitution 
adequate  to  the  exigencies  of  the  Union.  — 

You  are  therefore  hereby  commissioned  to  proceed  on  the  duties  required  of 
you  in  virtue  of  the  said  ordinance. 

Witness  our  trusty  and  well-beloved  George  Mathews,  Esq.,  our  captain- 
general,  governor,  and  commander- in-chief,  under  his  hand  and  our  great  seal, 
this  17th  day  of  April,  in  the  year  of  our  Lord  1787,  and  our  sovereignty 
and  independence  the  eleventh.  GEO.  MATHEWS. 

By  his  honor's  command.  —  J.  Milton,  Secretary. 


No.  2. 

THE  ACTS  OR  ORDINANCES  OF  RATIFICATION  QF  THE 
FEDERAL  CONSTITUTION. 

On  Friday,  September  28th,  1787,  the  states  in  Congress  having  received 
the  plan  of  the  constitution  with  the  resolutions  and  letter  accompanying  the 
same — all  as  reported  by  the  convention  —  did  resolve  that  they  "be  trans- 
mitted to  the  several  legislatures,  in  order  to  be  submitted  to  a  convention  of 
delegates,  chosen  in  each  state  by  the  people  thereof,  in  conformity  to  the 
resolves  of  the  convention  made  and  provided  in  that  case."  [For  this  and  the 
following  acts,  see  1.  Ell.  Deb.  319  et  seg.~\ 

Whereupon  each  state  by  itself,  in  its  own  time,  way,  and  place,  and  in  its 
own  convention,  which  was  composed  of  its  own  subjects  and  delegates,  and 
was  authorized  exclusively  with  its  power;  deliberated  upon  and  finally  rati- 
fied the  said  constitution  in  the  following  order,  and  in  the  following  words 
respectively  —  history  giving  no  sign  or  hint  of  any  other  words,  or  will,  than 
those  of  the  following  states,  to  vitalize  or  give  legal  force  to,  the  present 
federal  system. 


1.  DELAWARE  STATE 

We,  the  deputies  of  the  people  of  the  Delaware  state,  in  Convention 
met,  having  taken  in  our  serious  consideration  the  Federal  Constitu- 
tion proposed  and  agreed  upon  by  the  deputies  of  the  United  States,  in 
a  General  Convention  held  at  the  city  of  Philadelphia,  on  the  seventeenth 
day  of  September,  in  the  year  of  our  Lord  one  thousand  seven  hundred  and 
eighty-seven,  have  approved,  assented  to,  ratified,  and  confirmed,  and  by 
these  presents  do,  in  virtue  of  the  power  and  authority  to  us  given, 


524  RATIFICATIONS. 

for  and  in  behalf  of  ourselves  and  our  constituents,  fully,  freely,  and 
entirely  approve  of,  assent  to,  ratify,  and  confirm,  the  said  Con- 
stitution. 

Done  in  Convention,  at  Dover,  this  seventh  day  of  December,  in  the 
year  aforesaid,  and  in  the  year  of  the  independence  of  the  United  States  of 
America  the  twelfth. 


2.    COMMONWEALTH    OF    PENNSYLVANIA. 

In  the  name  of  the  People  of  Pennsylvania. 

Be  it  known  unto  all  men,  that  -we,  the  delegates  of  the  people  of  the 
commonwealth  of  Pennsylvania,  in  General  Convention  assembled,  have 
assented  to  and  ratified,  and  by  these  presents  do,  in  the  name  and  by 
the  authority  of  the  same  people,  and  for  ourselves,  assent  to  and 
ratify  the  foregoing  Constitution  of  the  United  States  of  America. 

Done  in  Convention  at  Philadelphia,  the  twelfth  day  of  December,  in  the 
year  of  our  Lord  one  thousand  seven  hundred  and  eighty-seven,  and  of  the 
independence  of  the  United  States  of  America  the  twelfth. 


3.   STATE  OF  NEW  JERSEY. 
In  Convention  of  the  State  of  New  Jersey. 

Whereas,  a  Convention  of  delegates  from  the  following  states,  viz.,  —  New 
Hampshire,  Massachusetts,  Connecticut,  New  York,  New  Jersey,  Pennsyl- 
vania, Delaware,  Maryland,  Virginia,  North  Carolina,  South  Carolina,  and 
Georgia,  —  met  at  Philadelphia,  for  the  purpose  of  deliberating  on,  and  form- 
ing a  Constitution  for  the  United  States  of  America,  —  finished  this  session  on 
the  17th  day  of  September  last,  and  reported  to  Congress  the  form  which  they 
had  agreed  upon,  in  the  words  following,  viz : 
[See  the  Constitution.]  .  .  . 

Now  be  it  known,  that  we,  the  delegates  of  the  state  of  New  Jersey, 
chosen  by  the  people  thereof,  for  the  purpose  aforesaid,  having  maturely 
deliberated  on  and  considered  the  aforesaid  proposed  Constitution, 
do  hereby,  for  and  on  the  behalf  of  the  people  of  the  said  State 
of  New  Jersey,  agree  to,  ratify,  and  confirm,  the  same,  and  every 
part  thereof. 

Done  in  convention,  by  the  unanimous  consent  of  the  members  present,  this 
18th  day  of  December,  in  the  year  of  our  Lord  1787,  and  of  the  independence 
of  the  United  States  of  America  the  twelfth. 


4.   STATE  OF  CONNECTICUT.  < 

In  the  name  of  the  People  of  the  State  of  Connecticut. 

"We,  the  delegates  of  the  people  of  said  state,  in  general  Conven- 
tion assembled,  pursuant  to  an  act  of  the  legislature  in  October  last,  have 
assented  to,  and  ratified,  and  by  these  presents  do  assent  to,  ratify, 
and  adopt  the  constitution  reported  by  the  convention  of  delegates  in 
Philadelphia,  on  the  17th  day  of  September,  A.  D.  1787,  for  the  United  States 
of  America.  Done  in  Convention,  this  9th  day  of  January,  A.  D.  1788. 


APPENDIX  C.    NO.  2.  525 


5.  COMMONWEALTH  OF  MASSACHUSETTS. 

The  Convention  having  impartially  discussed,  and  fully  considered,  the 
Constitution  for  the  United  States  of  America,  reported  to  Congress  by  the 
Convention  of  Delegates  from  the  United  States  of  America,  and  submitted  to 
us  by  a  resolution  of  the  General  Court  of  the  said  commonwealth,  passed  the 
25th  day  of  October  last  past,  —  and  acknowledging,  with  grateful  hearts,  the 
goodness  of  the  Supreme  Ruler  of  the  universe,  in  affording  the  people  of  the 
United  States,  in  the  course  of  His  providence,  an  opportunity,  deliberately 
and  peaceably,  without  fraud  or  surprise,  of  entering  into  an  explicit  and 
solemn  compact  with  each  other,  by  assenting  to  and  ratifying  a  new  Constitu- 
tion, in  order  to  form  a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  themselves  and  their  posterity,  —  do,  in  the 
name  and  in  behalf  of  the  people  of  the  commonwealth  of  Massa- 
chusetts, assent  to  and  ratify  the  said  Constitution  for  the  United 
States  of  America. 


6.  STATE  OF  GEORGIA. 

Whereas  the  form  of  a  Constitution  for  the  government  of  the  United  States 
of  America,  was,  on  the  17th  day  of  September,  1787,  agreed  upon  and 
reported  to  Congress  by  the  deputies  of  the  said  United  States  convened  in 
Philadelphia,  which  said  Constitution  is  written  in  the  words  following,  to-wit: 
[see  the  Constitution].  .  .  . 

Now  know  ye,  that  we,  the  delegates  of  the  people  of  the  state  of 
Georgia,  in  Convention  met,  pursuant  to  the  resolutions  of  the  legislature 
aforesaid,  having  taken  into  our  serious  consideration  the  said  Constitution,  have 
assented  to,  ratified  and  adopted,  and  by  these  presents  do,  in  virtue  of  the 
power*  and  authority  to  us  given  by  the  people  of  the  said  state  for 
that  purpose,  for  and  in  behalf  of  ourselves  and  constituents,  fully  and  entirely 
assent  to,  ratify  and  adopt  the  said  Constitution. 

Done  in  Convention,  at  Augusta,  in  the  said  state,  on  the  2d  day  of  Jan- 
uary, in  the  year  of  our  Lord,  1788,  and  of  the  independence  of  the  United 
States  the  twelfth. 


7.  MARYLAND. 

We,  the  delegates  of  the  people  of  the  state  of  Maryland,  having 
fully  considered  the  Constitution  of  the  United  States  of  America,  reported  to 
Congress  by  the  Convention  of  delegates  from  the  United  States  of  America, 
held  at  Philadelphia,  on  the  17th  day  of  September,  in  the  year  1787,  of  which 
the  annexed  is  a  copy,  and  submitted  to  us  by  a  resolution  of  the  General 
Assembly  of  Maryland,  in  November  session,  1787,  do,  for  ourselves,  and 
in  the  name  and  on  the  behalf  of  the  people  of  this  state,  assent  to 
and  ratify  the  said  Constitution. 


8.  STATE  OF   SOUTH  CAROLINA. 

In  Convention  of  the  people  of  the  state  of  South  Carolina,  by  their  repre- 
sentatives, held  in  the  city  of  Charleston,  on  Monday,  the  12th  day  of  May, 


526  RATIFICATIONS.    ' 

and  continued  by  divers  adjournments. to  Friday,  the  23d  day  of  May,  Anno 
Domini,  1788,  and  in  the  12th  year  of  the  independence  of  the  United  States 
of  America. 

The  Convention,  having  maturely  considered  the  Constitution,  or  form  of 
government,  reported  to  Congress  by  the  Convention  of  delegates  from  the 
United  States  of  America,  and  submitted  to  them  by  a  resolution  of  the  legisla- 
ture of  the  state,  passed  the  17th  and  18th  days  of  February  last,  in  order  to 
form  a  more  perfect  union,  establish  justice,  insure  domestic  tranquillity,  pro- 
vide for  the  common  defence,  promote  the  general  welfare,  and  secure  the 
blessings  of  liberty  to  the  people  of  the  said  United  States,  and  their  posterity, 
—  do,  in  the  name  and  behalf  of  the  people  of  this  state,  hereby 
assent  to  and  ratify  the  said  Constitution. 

Done  in  convention,  the  23d  day  of  May,  in  the  year  of  our  Lord,  1788,  and 
of  the  independence  of  the  United  States  of  America  the  twelfth. 


9.  STATE  OF  NEW  HAMPSHIRE. 

The  Convention  having  impartially  discussed  and  fully  considered  the 
Constitution  for  the  United  States  of  America,  reported  to  "Congress  by  the 
Convention  of  Delegates  from  the  United  States  of  America,  and  submitted  to 
us  by  a  resolution  of  the  General  Court  of  said  state,  passed  the  14th  day  of 
December  last  past,  and  acknowledging  with  grateful  hearts  the  goodness  of 
the  Supreme  Ruler  of  the  universe,  in  affording  the  people  of  the  United  States, 
in  the  course  of  His  providence,  an  opportunity,  deliberately  and  peaceably, 
without  fraud  or  surprise,  of  entering  into  an  explicit  and  solemn  compact  with 
each  other,  by  assenting  to  and  ratifying  a  new  Constitution,  in  order  to  form 
a  more  perfect  union,  establish  justice,  insure  domestic  tranquillity,  provide  for 
common  defence,  promote  the  general  welfare,  and  secure  the  blessings  of 
liberty  to  themselves  and  their  posterity,  —  do,  in  the  name  and  behalf  of 
the  people  of  the  state  of  New  Hampshire,  assent  to  and  ratify  the 
said  Constitution  for  the  United  States  of  America. 


10.   VIRGINIA. 

We,  the  delegates  of  the  people  of  Virginia,  duly  elected  in  pursuance 
of  a  recommendation  from  the  General  Assembly,  and  now  met  in  Conven- 
tion, having  fully  and  freely  investigated  and  discussed  the  proceedings  of  the 
Federal  Convention,  and  being  prepared  as  well  as  the  most  mature  delibera- 
tion hath  enabled  us,  to  decide  thereon,  —  do,  in  the  name  and  in  behalf  of 
the  people  of  Virginia :  declare  and  make  known,  that  the  powers  granted 
under  the  Constitution,  being  derived  from  the  people  of  the  United  States, 
may  be  resumed  by  them,  whensoever  the  same  shall  be  perverted  to  their  in- 
jury or  oppression,  and  that  every  power  not  granted  thereby  remains  with 
them,  and  at  their  will ;  that,  therefore,  no  right  of  any  denomination,  can  be 
cancelled,  abridged,  restrained,  or  modified  by  the  Congress,  by  the  Senate  or 
House  of  Representatives,  acting  in  any  capacity,  by  the  President,  or  any  de- 
partment or  officer  of  the  United  States,  except  in  those  instances  in  which 
power  is  given  by  the  Constitution  for  those  purposes ;  and  that  among  other 
essential  rights,  the  liberty  of  conscience,  and  of  the  press,  cannot  be  cancelled, 
abridged,  restrained,  or  modified,  by  any  authority  of  the  United  States.  With 
these  impressions,  with  a  solemn  appeal  to  the  Searcher  of  all  hearts  for  the 


APPENDIX  C.    NO.  2.  527 

purity  of  our  intentions,  and  under  the  conviction  that  whatsoever  imperfec- 
tions may  exist  in  the  Constitution,  ought  rather  to  be  examined  in  the  mode 
prescribed  therein,  than  to  bring  the  Union  into  danger  by  a  delay  with  a  hope 
of  obtaining  amendments  previous  to  the  ratifications, 

We,  the  said  delegates,  in  the  name  and  in  behalf  of  the  people  of 
Virginia,  do,  by  these  presents,  assent  to  and  ratify  the  Constitu- 
tion recommended,  on  the  17th  day  of  September,  1787,  by  the  Federal  Con- 
vention, for  the  government  of  the  United  States,  hereby  announcing  to  all 
those  whom  it  may  concern,  that  the  said  Constitution  is  binding  upon  the 
said  people,  according  to  an  authentic  copy  hereto  annexed,  in  the  words  fol- 
lowing. [See  the  Constitution.] 

Done  in  Convention,  this  26th  day  of  June,  1788. 


11.  STATE  OF  NEW  YORK. 

We,  the  delegates  of  the  people  of  the  state  of  New  York,  duly 
elected  and  met  in  Convention,  having  maturely  considered  the  Constitu- 
tion for  the  United  States  of  America,  agreed  to  on  the  17th  day  of  September, 
in  the  year  1787,  by  the  convention  then  assembled  at  Philadelphia,  in  the 
commonwealth  of  Pennsylvania,  (a  copy  whereof  precedes  these  presents,)  and 
having  also  seriously  and  deliberately  considered  the  present  situation  of  the 
United  States,  —  do  declare  and  make  known,  —  etc.,  etc.  .  .  . 

Under  these  impressions,  and  declaring  that  the  rights  aforesaid  cannot  be 
abridged  or  violated,  and  that  the  explanations  aforesaid  are  consistent  with 
the  said  Constitution,  and  in  confidence  that  the  amendments  which  shall  have 
been  proposed  to  the  said  Constitution  will  receive  an  early  and  mature  con- 
sideration, —  We,  the  said  delegates,  in  the  name  and  in  the  behalf  of  the 
people  of  the  state  of  New  York,  do,  by  these  presents,  assent  to 
and  ratify  the  said  Constitution. 

Done  in  Convention,  at  Poughkeepsie,  in  the  county  of  Duchess,  in  the  state 
of  New  York,  the  26th  day  of  July,  in  the  year  of  our  Lord  1788. 


12.   STATE  OF  NORTH  CAROLINA. 

In  Convention. 

Whereas  the  General  Convention  which  met  at  Philadelphia,  in  pursuance  of 
a  recommendation  of  Congress,  did  recommend  to  the  citizens  of  the  United 
States  a  Constitution  or  form  of  government  in  the  following  words,  namely,  — 

"  We,  the  people,"  etc.  [Here  follows  the  Constitution  of  the  United  States, 
verbatim]. 

Resolved,  That  this  Convention,  in  behalf  of  the  freemen,  citizens 
and  inhabitants  of  the  state  of  North  Carolina,  do  adopt  and  ratify 
the  said  Constitution  and  form  of  government. 

Done  in  Convention,  this  21st  day  of  November,  1789. 


13.   RHODE  ISLAND. 

Ratification  of  the  Constitution  by  the  Convention  of  the  state  of  Rhode 
Island,  and  Providence  Plantations. 

We,  the  delegates  of  the  people  of  the  state  of  Rhode  Island  and 
Providence  Plantations,  duly  elected  and  met  in  Convention,  havin°- 


528  THE  INTENT  OF  THE   CONVENTION. 

maturely  considered  the  Constitution  for  the  United  States  of  America,  agreed 
to  on  the  seventeenth  day  of  September,  in  the  year  one  thousand  seven  hun- 
dred and  eighty-seven,  by  the  Convention  then  assembled  at  Philadelphia,  in 
the  commonwealth  of  Pennsylvania  (a  copy  thereof  precedes  these  presents), 
and  having  also  seriously  and  deliberately  considered  the  present  situation  of 
this  state,  do  declare  and  make  known,  etc.,  etc.  .  .  . 

Under  these  impressions,  and  declaring  that  the  rights  aforesaid,  cannot 
be  abridged  or  violated,  and  that  the  explanations  aforesaid  are  consistent  with 
the  said  Constitution,  and  in  confidence  that  the  amendments  hereafter  men- 
tioned will  receive  an  early  and  mature  consideration,  and,  conformably  to  the 
fifth  article  of  said  Constitution,  speedily  become  a  part  thereof,  — We,  the  said 
delegates,  in  the  name  and  in  the  behalf  of  the  people  of  the  state  of 
Rhode  Island  and  Providence  Plantations,  do,  by  these  presents, 
assent  to  and  ratify  the  said  Constitution. 

Done  in  Convention,  at  Newport,  in  the  county  of  Newport,  in  the  state  of 
Rhode  Island  and  Providence  Plantations,  the  twenty -ninth  day  of  May,  in  the 
year  of  our  Lord  one  thousand  seven  hundred  and  ninety,  and  in  the  four- 
teenth year  of  the  independence  of  the  United  States  of  America. 


No.  3. 

EVIDENCES   OF   THE   INTENT   OF   THE  CONVENTION 

OF    1787. 

EXTRACTS   FROM   REPORT   OP  THE   COMMISSIONERS   TO   THE 
ANNAPOLIS   CONVENTION,   1786. 

That  there  are  important  defects  in  the  system  of  the  federal  government,  is 
acknowledged  by  the  acts  of  all  those  states  which  have  concurred  in  the 
present  meeting ;  that  the  defects,  upon  a  closer  examination,  may  be  found 
greater  and  more  numerous  than  even  these  acts  imply,  is  at  least  so  far  prob- 
able, from  the  embarrassments  which  characterize  the  present  state  of  our 
national  affairs,  both  foreign  and  domestic,  as  may  reasonably  be  supposed  to 
merit  a  deliberate  and  candid  discussion,  in  some  mode  which  will  unite  the  sen- 
timents and  councils  of  all  the  States.  In  the  choice  of  the  mode,  your  com- 
missioners are  of  opinion  that  a  convention  of  deputies  from  the  different  States, 
for  the  special  and  sole  purpose  of  entering  into  this  investigation,  and  digesting 
a  plan  for  supplying  such  defects  as  may  be  discovered  to  exist,  will  be  entitled 
to  a  preference,  from  considerations  which  will  occur  without  being  particu- 
larized. 

Under  this  impression,  your  commissioners,  with  the  most  respectful  defer- 
ence, beg  leave  to  suggest  their  unanimous  conviction,  that  it  may  essentially 
tend  to  advance  the  interests  of  the  Union,  if  the  States,  by  whom  they  have 
been  respectively  delegated,  would  themselves  concur,  and  use  their  endeavors  to 
procure  the  concurrence  of  the  other  States,  in  the  appointment  of  commissioners 
to  meet  in  Philadelphia,  on  the  second  Monday  in  May  next,  to  take  into  con- 
sideration the  situation  of  the  United  States,  to  provide  such  further  provisions 
as  shall  appear  to  them  necessary  to  render  the  Constitution  of  the  federal  gov- 
ernment adequate  to  the  exigencies  of  the  Union  ;  and  to  report  such  an  act  for 
that  purpose  to  the  United  States  in  Congress  assembled,  as,  when  agreed  to  by 


APPENDIX  C.    NO.  3.  529 

them,  and  afterwards  confirmed  by  the  legislatures  of  every  State,  will  effect- 
ually provide  for  the  same.  tf*S 

Dated  at  Annapolis,  Sept.  14,  1786.  VV 

RESOLUTION 

adopted  in  Congress,  Wednesday,  February  21,  1787. 

Resolved,  That,  in  the  opinion  of  Congress,  it  is  expedient  that,  on  the 
second  Monday  in  May  next,  a  convention  of  delegates,  who  shall  have  been  ap- 
pointed by  the  several  States,  be  held  at  Philadelphia,  for  the  sole  and  express 
purpose  of  revising  the  Articles  of  Confederation,  and  reporting  to  Congress  and 
the  several  legislatures  such  alterations  and  provisions  therein,  as  shall,  when 
agreed  to  in  Congress,  and  confirmed  by  the  States,  render  the  federal  Constitu- 
tion adequate  to  the  exigencies  of  government,  and  the  preservation  of  the  Union. 
[I.  Ell.  Deb.  120.] 


EXTRACTS  FROM  MR.  RANDOLPH'S  RESOLUTIONS, 

offered  in  the  convention  of  States,  May  29,  1787. 

"11.  Resolved,  that  a  republican  government  .  .  .  ought  to  be  guaranteed 
by  the  united  states  to  each  state. 

"12.  Resolved,  that  provision  ought  to  be  made  for  the  continuance  of  Con- 
gress .  .  .  until  a  given  day  after  the  reform  of  the  articles  of  union  shall  be 
adopted.  .  .  . 

"  13.  Resolved,  that  provision  ought  to  be  made  for  the  amendment  of  the 
articles  of  the  union,  whensoever  it  shall  seem  necessary. 

"  14.  Resolved,  that  the  legislative,  executive,  and  judiciary  powers,  within 
the  several  States,  ought  to  be  bound  by  oath,  to  support  the  Articles  of 
Union. 

"15.  Resolved,  that  the  amendments  which  shall  be  offered  to  the  Confedera- 
tion by  the  Convention,  ought,  at  a  proper  time  or  times,  after  the  approbation 
of  Congress,  to  be  submitted  to  an  assembly  or  assemblies  of  representatives, 
recommended  by  the  several  legislatures,  to  be  expressly  chosen  by  the  people, 
to  consider  and  decide  thereon." 

The  resolutions  of  Mr.  Randolph  were  referred  to  Committee  of  the  Whole, 
on  the  same  day.  [V.  Ell.  Deb.  128.] 

THE  SAME  RESOLUTIONS 

as  altered,  amended,  and  agreed  to,  IN  COMMITTEE  OF  THE  WHOLE  HOUSE, 
June  19,  1787. 

"  15.  Resolved,  That  provision  ought  to  be  made  for  the  continuance  of 
Congress  and  their  authorities,  until  a  given  day  after  the  reform  of  the 
articles  of  union  shall  be  adopted,  and  "for  the  completion  of  all  their  en- 
gagements. 

"  16.  Resolved,  That  a  republican  constitution  and  its  existing  laws  ought  to 
be  guaranteed  to  each  State  by  the  United  States. 

"  17.  Resolved,  That  provision  ought  to  be  made  for  the  amendment  of  the 
articles  of  union  whensoever  it  shall  seem  necessary. 

"  18.  Resolved,  That  the  legislative,  executive,  and  judiciary  powers,  within 
the  several  States,  ought  to  be  bound  by  oath  to  support  the  articles  of 
union. 

34 


530  THE  INTENT  OF  THE  CONVENTION. 

"19.  Resolved,  That  the  amendments  which  shall  be  offered  to  the  Confed- 
eration by  the  Convention,  ought,  at  a  proper  time  or  times  after  the  approba- 
tion of  Congress,  to  be  submitted  to  an  assembly  or  assemblies  of  representatives, 
recommended  by  the  several  legislatures  to  be  expressly  chosen  by  the  people 
to  consider  and  decide  thereon."  [V.  Ell.  Deb.  189,  211.] 


THE  SAME  RESOLUTIONS 

were  thereafter  taken  up  and  fully  and  finally  deliberated  upon  by  THE  CON- 
VENTION itself  for  more  than  a  month ;  and  they  then  appear,  as  follows,  in  a 
series  of  twenty-three,  unanimously  referred  to  the  committee  on  detail ;  who, 
on  Aug.  6,  —  the  convention  having  adjourned  meanwhile,  to  await  the  com- 
mittee's  action,  —  reported  them  back  in  the  shape  of  the  present  constitution, 
which  was  subsequently  amended  only  in  style  and  polish  by  the  committee  on 
revision  and  style,  —  the  chairman  of  which  was  Gouverneur  Morris.  No  prin- 
ciple or  idea  was  varied  that  has  any  reference  to  this  great  question — whether 
the  States  were  nationalized  or  federalized? 

"  XVIII.  Resolved,  That  a  republican  form  of  government  shall  be  guaran- 
teed to  each  State  ;  and  that  each  State  shall  be  protected  against  foreign  and 
domestic  violence. 

"  XIX.  Resolved,  That  provision  ought  to  be  made  for  amendment  of  the 
articles  of  union  whensoever  it  shall  seem  necessary. 

"  XX.  Resolved,  That  the  legislative,  executive,  and  judiciary  powers  within 
the  several'States,  and  of  the  national  government,  ought  to  be  bound  by  oath 
to  support  the  articles  of  union. 

"  XXI.  Resolved,  That  the  amendments  which  shall  be  offered  to  the  Confed- 
eration by  the  Convention  ought,  at  a  proper  time  or  times  after  the  approbation 
of  Congress,  to  be  submitted  to  an  assembly  or  assemblies  of  representatives, 
recommended  by  the  several  legislatures,  to  be  expressly  chosen  by  the  people, 
to  consider  and  decide  thereon."  [V.  Ell.  Deb.  375.] 


EXTRACT  FROM  THE  PROCEEDINGS  OF  THE  FEDERAL 
CONVENTION,  MAY  30,  1787, 

showing  that  the  Convention  were  determined  not  to  depart  from  the  federal 
idea.  [See  Madison's  Journal,  V.  Ell.  Deb.  132.] 

Roger  Sherman,  from  Connecticut,  took  his  seat.  The  house  went  into 
Committee  of  the  Whole  on  the  State  of  the  Union.  Mr.  Gorham  was  elected 
to  the  chair  by  ballot. 

The  propositions  of  Mr.  Randolph,  which  had  been  referred  to  the  Commit- 
tee, being  taken  up,  he  moved,  on  the  suggestion  of  Mr.  G.  Morris,  that  the 
first  of  his  propositions,  to  wit:  "Resolved,  that  the  Articles  of  Confederation 
ought  to  be  so  corrected  and  enlarged  as  to  accomplish  the  objects  pro- 
posed by  their  institution,  namely,  common  defence,  security  of  lioerty,  and 
general  welfare,"  mutually  be  postponed,  in  order  to  consider  the  three 
following :  — 

"  1.  That  a  union  of  States  merely  federal  will  not  accomplish  the  objects 
proposed  by  the  Articles  of  Confederation  —  namely,  common  defence,  security 
of  liberty,  and  general  welfare. 

"  2.  That  no  treaty  or  treaties  among  the  whole  or  part  of  the  States,  as 
individual  sovereignties,  would  be  sufficient. 


APPENDIX   C.    NO.  3.  531 

"3.  That  a  national  government  ought  to  be  established,  consisting  of  a 
supreme  legislative,  executive  and  judiciary." 

The  motion  for  postponing  was  seconded  by  Mr.  G.  Morris,  and  unanimously 
agreed  to.  Some  verbal  criticisms  were  raised  against  the  first  proposition,  and 
it  was  agreed,  on  motion  of  Mr.  Butler,  seconded  by  Mr.  Randolph,  to  pass  on 
to  the  third,  which  underwent  a  discussion,  less,  however,  on  its  general  merits 
than  on  the  force  and  extent  of  the  particular  terms  national  and  supreme. 

On  the  question,  as  moved  by  Mr.  Butler,  on  the  third  proposition,  it  was 
resolved  in  Committee  of  the  Whole,  "that  a  national  government  ought  to  be 
established,  consisting  of  a  supreme  legislative,  executive  and  judiciary." 
Massachusetts,  Pennsylvania,  Delaware,  Virginia,  North  Carolina,  South  Caro- 
lina, ay,  6 ;  Connecticut,  no,  1 ;  New  York,  divided,  [Colonel  Hamilton,  ay, 
Mr.  Yates,  no.] 

YATES'  VERSION 

of  what  occurred  on  said  May  30, 1787,  is  as  follows :  [See  "  Yates'  Minutes," 
I.  Ell.  Deb.  391]. 

WEDNESDAY,  May  30,  1787. 

Convention  met  pursuant  to  adjournment.  The  Convention,  pursuant  to 
order,  resolved  itself  into  a  committee  of  the  whole.  Mr.  Gorham  [a  member 
from  Massachusetts],  appointed  chairman. 

Mr.  Randolph  then  moved  his  first  resolve,  to-wit :  — 

"  Resolved,  That  the  Articles  of  Confederation  ought  to  be  so  corrected  and 
enlarged,  as  to  accomplish  the  objects  proposed  by  their  institution,  namely, 
common  defence,  security  of  liberty,  and  general  welfare," 

Mr.  G.  Morris  observed,  that  it  was  an  unnecessary  resolution,  as  the  subse- 
quent resolutions  would  not  agree  with  it.  It  was  then  withdrawn  by  the  pro- 
poser, and,  in  lieu  thereof,  the  following  were  proposed,  to-wit : 

"  1.  Resolved,  That  a  union  of  States,  merely  federal,  will  not  accomplish  the 
objects  proposed  by  the  Articles  of  Confederation,  namely,  common  defence, 
security  of  liberty,  and  general  welfare. 

"  2.  Resolved,  That  no  treaty  or  treaties  among  any  of  the  States,  as  sove- 
reign, will  accomplish  or  secure  their  common  defence,  security  of  liberty,  and 
general  welfare. 

"  3.  Resolved,  That  a  national  government  ought  to  be  established,  consist- 
ing of  a  supreme  judicial,  legislative  and  executive. 

In  considering  the  question  on  the  1st  resolve,  various  modifications  were 
proposed,  when  Mr.  Pinckney  observed,  at  last,  that,  if  the  Convention  agreed 
to  it,  it  appeared  to  him  that  their  business  was  at  an  end ;  for,  as  the  powers 
of  the  house  in  general  were  to  revise  the  present  Confederation,  and  to  alter 
or  amend,  as  the  case  might  require,  to  determine  its  insufficiency,  or  inca- 
pability of  amendment,  or  improvement,  must  end  in  the  dissolution  of  the 
powers. 

This  remark  had  its  weight ;  and  in  consequence  of  it,  the  1st  and  2d  resolves 
were  dropped,  and  the  question  agitated  on  the  3d. 

This  last  resolve  had  also  its  difficulties  :  the  term  supreme  required  explana- 
tion. It  was  asked  whether  it  was  intended  to  annihilate  State  govern- 
ments. It  was  answered,  only  so  far  as  the  powers  intended  to  be  granted 
to  the  new  government  should  clash  with  the  States,  when  the  latter  were  to 
yield. 

For  the  resolution :  Massachusetts,  Pennsylvania,  Delaware,  Virginia,  North 
Carolina,  South  Carolina.  Against  it  Connecticut;  New  York,  divided  ;  Jersey 
and  other  states  unrepresented." 


532  THE  INTENT  OF  THE   CONVENTION. 


THE  NATIONAL  IDEA  REPROBATED  BY  THE  CONVENTION. 

By  the  19th  of  June,  the  COMMITTEE  OF  THE  WHOLE  convention  had  discussed 
and  agreed  on  the  23  resolutions  to  be  found  in  V.  Elliott's  Debates  189  —  the 
first  of  them  being  as  follows : 

"  Resolved  that  in  the  opinion  of  this  committee  a  national  government  ought 
to  be  established,  consisting  of  a  supreme  legislative,  executive,  and  judiciary." 

This  brought  the  convention  face  to  face  with  the  national  idea  as  a  matter 
not  merely  descriptive  or  of  common  parlance,  but  legal,  technical,  and  institu- 
tional. 

Whereupon  followed  the  remarkable  elimination  by  THE  CONVENTION,  on 
motion  of  Mr.  Ellsworth,  by  striking  out  "NATIONAL"  from  all  the  resolutions, 
and  substituting  the  "  FEDERAL  "  idea  and  phrase —  "  THE  UNITED  STATES."  In 
those  resolutions  this  change  was  made  26  times.  The  following  extract  from 
Madison's  Journal  is  decisive.  [Ibid.  214.] 

"  The  first  resolution  of  the  report  of  the  Committee  of  the  Whole  being 
before  the  House. 

"  Mr.  Ellsworth,  seconded  by  Mr.  Gorham,  moved  to  alter  it,  so  as  to  run  '  that 
the  Government  of  the  United  States  ought  to  consist  of  a  supreme  legislative, 
executive,  and  judiciary.'  This  alteration,  he  said,  would  drop  the  word 
national,  and  retain  the  proper  title  '  the  United  States.'  He  could  not  admit 
the  doctrine  that  a  breach  of  any  of  the  Federal  Articles  could  dissolve  the 
whole.  It  would  be  highly  dangerous  not  to  consider  the  Confederation  as 
still  subsisting.  He  wished,  also,  the  plan  of  the  Convention  to  go  forth  as  an 
amendment  of  the  Articles  of  the  Confederation,  since,  under  this  idea,  the 
authority  of  the  legislatures  could  ratify  it.  If  they  are  unwilling,  the  people 
will  be  so  too.  If  the  plan  goes  forth  to  the  people  for  ratification,  several  suc- 
ceeding conventions  within  the  states  would  be  unavoidable.  He  did  not  like 
these  conventions.  They  were  better  fitted  to  pull  down  than  to  build  up 
constitutions. 

"  Mr.  Randolph  did  not  object  to  the  change  of  expression,  but  apprised  the 
gentlemen  who  wished  for  it,  that  he  did  not  admit  it  for  the  reasons  assigned ; 
particularly  that  of  getting  rid  of  a  reference  to  the  people  for  ratification. 

"  The  motion  of  Mr.  Ellsworth  was  acquiesced  in,  nem.  con. 

"  The  second  resolution,  '  That  the  national  legislature  ought  to  consist  of  two 
branches/  being  taken  up,  the  word  'national'  struck  out,  as  of  course." 

THE  LAST  VAIN  EFFORT  TOWARDS  NATIONALIZATION. 

Several  attempts,  mentioned  in  Part  III.  Chapter  VII.  were  made  in  the  Con- 
yention,  to  give  the  general  government  legislative  control  over  the  laws  of  the 
states.  All  of  them  failed.  The  last  on  Aug.  23,  1 787,  is  peculiarly  instructive, 
and  appears  as  follows  in  Madison's  Journal.  [V.  Ell.  Deb.  467  et  seg.~\ 

"  On  the  question,  then  to  agree  to  the  18th  clause  of  article  VII.  section  1 
[of  the  constitution  as  it  was  then  formed.  See  Ibid.  376.]  as  amended,  it 
passed  in  the  affirmative  nem.  con. 

"  Mr.  Charles  Pinckney  moved  to  add,  as  an  additional  power  to  be  vested  in 
the  legislature  of  the  United  States,  — 'to  negative  all  laws  passed  by  the  sev- 
eral states,  interfering,  in  the  opinion  of  the  legislature  with  the  general  inte- 
rests and  harmony  of  the  Union,  provided  that  two-thirds  of  the  members  of 
each  House  assent  to  the  same.' 

"  This  principle,  he  observed,  had  formerly  been  agreed  to.  He  considered 
the  precaution  as  essentially  necessary.  The  objection  drawn  from  the  predomi- 


APPENDIX  C.    NO.  3.  533 

nance  of  the  large  states  had  been  removed  by  the  equality  established  in  the 
Senate. 

"  Mr.  Broom  seconded  the  proposition. 

"  Mr.  Sherman  thought  it  unnecessary,  the  laws  of  the  general  government 
being  supreme  and  paramount  to  the  state  laws,  according  to  the  plan  as  it  now 
stands. 

"  Mr.  Madison  proposed  that  it  should  be  committed.  He  had  been,  from  the 
beginning,  a  friend  to  the  principle,  but  thought  the  modification  might  be  made 
better. 

"  Mr.  Mason  wished  to  know  how  the  power  was  to  be  exercised.  Are  all 
laws  whatever  to  be  brought  up?  Is  no  road  nor  bridge  to  be  established 
without  the  sanction  of  the  general  legislature  ?  Is  this  to  sit  constantly,  in 
order  to  receive  and  revise  the  state  laws  ?  He  did  not  mean,  by  these  remarks, 
to  condemn  the  expedient,  but  he  was  apprehensive  that  great  objections  would 
lie  against  it. 

"  Mr.  Williamson  thought  it  unnecessary  and,  having  been  already  decided,  a 
revival  of  the  question  was  a  waste  of  time. 

"  Mr.  Wilson  considered  this  as  the  key-stone  wanted  to  complete  the  wide 
arch  of  government  we  are  raising.  The  power  of  self-defence  had  been  urged 
as  necessary  for  the  state  government.  It  was  equally  necessary  for  the  gene- 
eral  government.  The  firmness  of  judges  is  not,  of  itself,  sufficient.  Som- 
thing  further  is  requisite.  It  will  be  better  to  prevent  the  passage  of  an 
improper  law,  than  to  declare  it  void,  when  passed. 

"  Mr.  Rutledge.  If  nothing  else,  this  alone  would  damn,  and  ought  to  damn 
the  Constitution.  Will  any  state  ever  agree  to  be  bound  hand  and  foot  in  this 
manner  ?  It  is  worse  than  making  mere  corporations  of  them,  whose  by-laws 
would  not  be  subject  to  this  shackle. 

"  Mr.  Ellsworth  observed,  that  the  power  contended  for  would  require,  either 
that  all  laws  of  the  state  legislature  should,  previous  to  their  taking  effect,  be 
transmitted  to  the  general  legislature,  or  be  repealable  by  the  latter ;  or  that 
the  state  executives  should  be  appointed  by  the  general  government,  and  have 
a  control  over  the  state  laws.  If  the  last  was  meditated,  let  it  be  declared. 

"  Mr.  Pinckney  declared,  that  he  thought  the  state  executives  ought  to  be 
so  appointed,  with  such  a  control ;  and  that  it  would  be  so  provided,  if  another 
Convention  should  take  place. 

"  Mr.  Gouverneur  Morris  did  not  see  the  utility  or  practicability  of  the  pro- 
position of  Mr.  Pinckney,  but  wished  it  to  be  referred  to  the  consideration  of  a 
committee. 

"  Mr.  Langdon  was  in  favor  of  the  proposition.  He  considered  it  as  resolvable 
into  the  question,  whether  the  extent  of  the  national  Constitution  was  to  be 
judged  of  by  the  general,  or  the  state  governments. 

"  On  the  question  for  commitment,  it  passed  in  the  negative. 

"  New  Hampshire,  Pennsylvania,  Delaware,  Maryland,  Virginia,  ay,  5  ;  Mas- 
sachusetts, Connecticut,  New  Jersey,  North  Carolina,  South  Carolina,  Georgia, 
no,  6. 

"  Mr.  Pinckney  then  withdrew  his  proposition." 


THE  CONVENTION  WAS  UNANIMOUS  FOR  FEDE&ALIZATION. 

The  final  and  unanimous  sense  of  the  Convention  on  this  subject,  is  shown  by 
the  following  extracts  from  the  constitution  as  originally  reported  on  August  6, 
and  the  action  of  the  convention  thereon. 

"We  the  people  of  the  states  of  New  Hampshire,  Massachusetts,  Rhode  Island 


534 


THE  INTENT  OF  THE  CONVENTION. 


and  Providence  Plantations,  Connecticut,  New  York,  New  Jersey,  Pennsylva- 
nia, Delaware,  Maryland,  Virginia,  North  Carolina,  South  Carolina  and  Geor- 
gia do  ordain,  declare,  and  establish,  the  following  constitution,  for  the  govern- 
ment of  ourselves  and  our  posterity :  — 

"Article  I.    The  style  of  the  government  shall  be  the  United  States  of  America. 

"  Article  II.  The  government  shall  consist  of  supreme  legislative,  executive, 
and  judicial  powers.  .  .  . 

"  Tuesday,  Aug.  7.    IN 
being  taken  up,  .  .  ." 

The  preamble  of  the  report  was  agreed  to  nem.  con.   So  were  Articles  I  and  II. 

This  was  the  final  and  unanimous  decision  of  the  convention  of  states  on 
the  subject  in  hand.  It  was  never  reversed  or  modified.  It  was  equivalent  to 
saying  —  this  is  a  federation  of  sovereign  commonwealths. 


CONVENTION.     The  report  of  the  committee  of  detail 


THE  LETTER  OF  THE  CONVENTION  TO  CONGRESS, 

which  General  Washington  wrote  "  by  unanimous  order  of  the  Convention," 
shows  that  the  said  convention  unanimously  intended  to  continue  "  THE  FEDE- 
RAL GOVERNMENT  OF  THESE  STATES,"  and  that  federal  agency's  powers  were  all 

"  DELEGATED  "  in  "  TRUST." 

"  We  have  now  the  honor  to  submit  to  the  consideration  of  the  United  States 
in  Congress  assembled  that  Constitution  which  has  appeared  to  us  the  most 
advisable.  The  friends  of  our  country  have  long  seen  and  desired,  that  the 
power  of  making  war,  peace  and  treaties ;  that  of  levying  money  and  regulating 
commerce ;  and  the  correspondent  executive  and  judicial  authorities,  should  be 
fully  and  effectually  vested  in  the  general  government  of  the  Union.  But  the 
impropriety  of  delegating  such  extensive  trust  to  one  body  of  men  is  evident. 
Thence  results  the  necessity  of  a  different  organization." 

"  It  is  obviously  impracticable  on  the  federal  government  of  those  states,  to 
secure  all  rights  of  independent  sovereignty  (government  ?)  to  each,  and  yet  pro- 
vide for  the  interest  and  safety  of  all.  Individuals  entering  into  society  must 
give  up  a  share  of  liberty,  to  preserve  the  rest. 

"  That  it  will  meet  the  full  and  entire  approbation  of  every  state  is  not  perhaps 
to  be  expected.  But  each  will  doubtless  consider  that  had  her  interest  alone 
been  consulted,  the  consequences  might  have  been  particularly  disagreeable 
and  injurious  to  others."  .  .  . 


THE  SYSTEM  CONSIDERED   AS  FEDERAL  BY  THE  FATHERS. 

EXTRACT  FROM  PENDLETON*S  SPEECH  IN  VIRGINIA  CONVENTION.. 

But  the  power  of  the  Convention  is  doubted.  What  is  the  power  ?  To 
propose.  Not  to  determine.  This  power  of  proposing  was  very  broad ;  it 
extended  to  remove  all  defects  in  government ;  the  members  of  that  Conven- 
tion who  were  to  consider  all  the  defects  in  our  general  government,  were  not 
confined  to  any  particular  plan.  Were  they  deceived  ?  This  is  the  proper 
question  here.  Suppose  the  paper  on  your  table  dropped  from  one  of  the 
planets ;  the  people  found  it,  and  sent  us  here  to  consider  whether  it  was 
proper  for  their  adoption  ;  must  we  not  obey  them  ? 


APPENDIX  C.    NO.  3.  535 


PROM   NUMBER  XL   OF   THE   FEDERALIST,   BY   MR.   MADISON. 

The  second  point  to  be  examined  is,  whether  the  Convention  were  authorized 
to  frame,  and  propose  this  mixed  Constitution.  The  powers  of  the  Convention 
ought,  in  strictness,  to  be  determined,  by  an  inspection  of  the  commissions 
given  to  the  members  by  their  respective  constituents.  As  all  of  these,  how- 
ever, had  reference,  either  to  the  recommendation  from  the  meeting  at  Annapo- 
lis, in  Sept.,  1786,  or  to  that  from  Congress,  in  February,  1787,  it  will  be 
sufficient  to  turn  to  these  particular  acts. 

From  these  two  acts,  it  appears,  1st,  that  the  object  of  the  Convention,  was 
to  establish,  in  these  States,  a  firm  national  government ;  2d,  that  this  govern- 
ment was  to  be  such  as  would  be  adequate  to  the  exigencies  of  government,  and 
the  preservation  of  the  Union;  3d,  that  those  purposes  were  to  be  effected  by 
alterations  and  provisions  in  the  articles  of  Confederation,  —  as  it  is  expressed 
in  the  act  of  Congress ;  or  by  such  further  provisions  as  should  appear  necessary 
—  as  it  stands  in  the  recommendatory  act  from  Annapolis ;  4th,  that  the  altera- 
tions and  provisions  were  to  be  reported  to  Congress,  and  to  the  states,  in 
order  to  be  agreed  to  by  the  former  and  confirmed  by  the  latter. 

No  stress,  it  is  presumed,  will,  in  this  case,  be  laid  on  the  title  ;  a  change  of 
that  could  never  be  deemed  an  exercise  of  ungranted  power.  Alterations  in 
the  body  of  the  instrument  are  expressly  authorized.  New  provisions  therein 
are  also  expressly  authorized.  Here  there  is  a  power  to  change  the  title ;  to 
insert  new  articles ;  to  alter  old  ones.  Must  it  of  necessity  be  admitted  that 
this  power  is  infringed,  so  long  as  a  part  of  the  old  articles  remain  ? 

Will  it  be  said  that  the  fundamental  principles  of  the  Confederation  were  not 
within  the  purview  of  the  Convention,  and  ought  not  to  have  been  varied  ?  I 
ask,  what  are  these  principles  ?  Do  they  require,  that  in  the  establishment  of 
the  constitution,  the  states  should  be  regarded  as  distinct  and  independent 
sovereigns  ?  They  are  so  regarded  by  the  constitution  proposed." 

THE   FATHERS   REPUDIATED   THE   NATIONAL  IDEA, 

in  the  state  ratifying  conventions.  Two  will  be  quoted  for  all :  Said  FISHER 
AMES  in  that  of  Massachusetts  :  "  No  argument  against  the  new  plan  has  made 
a  deeper  impression  than  this,  that  it  will  produce  a  consolidation  of  the  states. 
This  is  an  effect  which  all  good  men  will  deprecate.  .  .  .  The  state  govern- 
ments are  essential  parts  of  the  system.  .  .  .  The  senators  represent  the  sove- 
reignty of  the  states  in  the  quality  of  ambassadors  of  the  states.  ...  A  consoli- 
dation of  the  states  .  .  .  would  subvert  the  new  constitution,  and  against 
which  this  very  article  [the  one  providing  for  the  senate]  so  much  condemned, 
is  our  best  security.  Too  much  provision  cannot  be  made  against  consolida- 
tion. .  .  .  This  article  seems  to  be  an  excellence  of  the  constitution,  and 
affords  just  ground  to  believe  that  it  will  be,  in  practice  as  in  theory,  a  federal 
republic.  [II.  Ell.  Deb.  45.] 

Said  CHANCELLOR  PENDLETON,  in  the  Yirginia  convention:   "But  it  is 

represented  to  be  a  consolidated  government,  annihilating  that  of  the  states 

a  consolidated  government,  which  so  extensive  a  territory  as  the  united  states 
cannot  admit  of,  without  terminating  in  despotism.  If  this  be  such  a  govern- 
ment I  will  confess  with  my  worthy  friend  [Henry]  that  it  is  inadmissable  over 


536  THE  INTENT  OF  THE   CONVENTION. 

such  a  territory  as  this  country.  ...  It  is  the  interest  of  the  federal  to 
preserve  the  state  governments ;  upon  the  latter  the  existence  of  the  former 
depends.  .  .  .  Unless,  therefore,  there  be  state  legislatures  to  continue  the 
existence  of  congress,  and  preserve  order  and  peace  among  the  inhabitants, 
this  general  government  .  .  .  must  itself  be  destroyed.  ...  I  wonder  how 
any  gentleman  could  conceive  an  idea  of  the  possibility  of  the  former  destroy- 
ing the  latter."  [III.  Ell.  Deb.  39.]  See  also,  to  the  same  effect,  the  extracts 
from  the  Federalist  in  Appendix. 


APPENDIX  D. 


EXTKACTS   FROM  THE   EEDEKALIST,   INCLUDING  THE 
MOST   OF  NO.   39. 

THIS  Appendix  consists  of  many  extracts  from  that  master-piece  of  exposi- 
tion —  the  Federalist.  It  is  decisive  on  the  character  of  our  general  polity, 
while  it  entirely  supports  this  book.  The  leading  points  proved  by  these 
quotations,  are 

1.  That  the  new  compact  was  to  form  "a  more  perfect  union"  of  states, 
which  the  fathers  regarded  as  a  confederacy. 

2.  That  the  "essential  component  parts"  of  the  new  polity  was  common- 
wealths —  named  and  provided  for  as  parties  to,  and  actors  in,  the  system. 

3.  That  the  federal  government  provided  for  by  the  compact  was  to  operate 
on  persons,  and  not  on  states. 

4.  That  Webster,  Story,  and  the  federal  supreme  court  have  committed  a 
gross  offence  against  sovereignty,  by  declaring  that  "  a  change  had  been  made 
from  a  confederacy  of  states  to  a  different  system." 

The  italics,  etc.,  are  all  in  the  text  [J.  C.  Hamilton's  edition],  but  the  heavy- 
faced  type  is  resorted  to  by  the  author  to  make  the  support  of  his  contentions 
the  more  conspicuous. 

These  extracts  should  be  read  thoughtfully  in  connection  with  Chapters  VII. 
Part  III.,  and  V.  Part  IV. 


THE  FEDERALIST. 
NUMBER  I. 

[Hamilton.] 

"...  I  propose,  in  a  series  of  papers,  to  discuss  the  following  interesting 
particulars.  .  .  .  The  utility  of  the  Union  to  your  political  prosperity.  .  .  .  The 
insufficiency  of  the  present  confederation  to  preserve  that  UNION.  .  .  .  The 
necessity  of  a  government,  at  least  equally  energetic  with  the  one  proposed,  to 
the  attainment  of  this  object.  .  .  .  The  conformity  of  the  proposed  constitution 
to  the  principles  of  republican  government.  .  .  .  Its  analogy  to  your  own  state 
constitution  .  .  .  and  lastly,  The  additional  security,  which  its  adoption  will 
afford  to  the  preservation  of  that  species  of  government,  to  liberty,  and  to 
property.  ..." 


538  EXTRACTS  FROM  THE  FEDERALIST. 

NUMBER  IX. 
[Hamilton.] 

THE  UTILITY  OF  THE  UNION  AS  A  SAFEGUARD  AGAINST  DOMESTIC  FACTION 
AND  INSURRECTION. 

"...  A  FIRM  union  will  be  of  the  utmost  moment  to  the  peace  and  liberty 
of  the  states,  as  a  barrier  against  domestic  faction  and  insurrection.  .  .  . 

"  So  far  are  the  suggestions  of  Montesquieu  from  standing  in  opposition  to  a 
general  union  of  the  states,  that  he  explicitly  treats  of  a  CONFEDERATE  RE- 
PUBLIC as  the  expedient  for  extending  the  sphere  of  popular  government,  and 
reconciling  the  advantages  of  monarchy  with  those  of  republicanism. 

"  '  It  is  very  probable/  says  he,  '  that  mankind  would  have  been  obliged  at 
length,  to  live  constantly  under  the  government  of  a  SINGLE  PERSON,  had  they 
not  contrived  a  kind  of  constitution,  that  has  all  the  internal  advantages  of  a 
republican,  together  with  the  external  force  of  a  monarchical  government.  I 
mean  a  CONFEDERATE  REPUBLIC. 

"'This  form  of  government  is  a  convention,  bv  which  several  smaller 
states  agree  to  become  members  of  a  larger  one,  which  they  intend  to  form. 
It  is  a  kind  of  assemblage  of  societies,  that  constitute  a  new  one, 
capable  of  increasing  by  means  of  new  associations,  till  they  arrive  to  such 
a  degree  of  power  as  to  be  able  to  provide  for  the  security  of  the  united 
body. 

" '  A  republic  of  this  kind,  able  to  withstand  an  external  force,  may  support 
itself  without  any  internal  corruption.  The  form  of  this  society  prevents  all 
manner  of  inconveniences. 

" '  If  a  single  member  should  attempt  to  usurp  the  supreme  authority,  he 
could  not  be  supposed  to  have  equal  authority  and  credit  in  all  the  confederate 
states.  .  .  . 

" '  Should  a  popular  insurrection  happen  in  one  of  the  confederate  states,  the 
others  are  able  to  quell.  Should  abuses  creep  into  one  part,  they  are  reformed 
by  those  that  remain  sound.  The  state  may  be  destroyed  on  the  one  side,  and 
not  on  the  other;  the  confederacy  may  be  dissolved,  and  the  confed- 
erates preserve  their  sovereignty. 

" '  As  this  government  is  composed  of  small  republics  it  enjoys  the  internal 
happiness  of  each ;  and,  with  respect  to  its  external  situation,  it  is  possessed, 
by  means  of  the  association,  of  all  the  advantages  of  large  monarchies.' "  [Spirit 
of  Laws,  Book  IX.  Ch.  L] 

I  have  thought  it  proper  to  quote  at  length  these  interesting  passages,  be- 
cause they  contain  a  luminous  abridgment  of  the  principal  arguments  in  favor 
of  the  union,  and  must  effectually  remove  the  false  impressions  which  a  misap- 
plication of  the  other  parts  of  the  work  was  calculated  to  produce.  .  .  . 

The  definition  of  a  confederate  republic  seems  simply  to  be  "  an  assemblage 
of  societies,"  or  an  association  of  two  or  more  states  into  one  state.  The  ex- 
tent, modifications,  and  objects,  of  the  federal  authority  are  mere  matters  of 
discretion.  So  long  as  the  separate  organization  of  the  members  be  not  abol- 
ished, so  long  as  it  subsists  by  a  constitutional  necessity  for  local  purposes, 
though  it  should  be  in  perfect  subordination  to  the  general  authority  of  the 
union  it  would  still  be,  in  fact  and  in  theory,  an  association  of  states,  or  a 
confederacy.  .  •  ." 


APPENDIX  D.  539 

NUMBER  XIV. 
[Madison.] 

"...  The  immediate  object  of  the  federal  constitution  is  to  secure  the  union 
of  the  thirteen  primitive  states,  which  we  know  to  be  practicable ;  and  to  add 
to  them  such  other  states  as  may  arise  in  their  own  bosoms,  or  in  their  neigh- 
borhoods, which  we  cannot  doubt  to  be  equally  practicable.  .  .  . 

"  Happily  for  America,  happily,  we  trust,  for  the  whole  human  race,  they  [the 
people]  pursued  a  new  and  more  noble  course.  They  accomplished  a  revolution 
which  has  no  parallel  in  the  annals  of  human  society.  Thev  reared  the  fabrics 
of  governments  which  have  no  model  on  the  face  of  the  globe.  They  formed 
the  design  of  a  great  confederacy,  which  it  is  incumbent  on  their  succes- 
sors to  improve  and  perpetuate.  If  their  works  betray  imperfections,  we  won- 
der at  the  fewness  of  them.  If  they  erred  most  in  the  structure  of  the  union, 
this  was  the  work  most  difficult  to  be  executed ;  this  is  the  work  which  has 
been  new  modelled  by  the  act  of  your  convention,  and  it  is  that  act 
on  which  you  are  now  to  deliberate  and  decide.  ..." 


NUMBER  XV. 
[Hamilton.] 

"...  The  great,  and  radical  vice,  in  the  construction  of  the  existing  confed- 
eration, is  in  the  principle  of  LEGISLATION  for  STATES  or  GOVERNMENTS  in  their 
CORPORATE  or  COLLECTIVE  CAPACITIES,  and  as  contradistinguished  from  the 
INDIVIDUALS  of  whom  they  consist.  Though  this  principle  does  not  run  through 
all  the  powers  delegated  to  the  union ;  yet  it  pervades  and  governs  those  on 
which  the  efficacy  of  the  rest  depends.  .  .  . 

"...  We  must  extend  the  authority  of  the  union,  to  the  persons  of  the  citi- 
zens—  the  only  proper  objects  of  government. 

"  Government  implies  the  power  of  making  laws.  It  is  essential  to  the  idea 
of  a  law,  that  it  be  attended  with  a  sanction ;  or,  in  other  words,  a  penalty  or 
punishment  for  disobedience.  If  there  be  no  penalty  annexed  to  disobedience, 
the  resolutions  or  commands  which  pretend  to  be  laws  will  in  fact,  amount  to 
nothing  more  than  advice  or  recommendation.  This  penalty,  whatever  it  may 
be,  can  only  be  inflicted  in  two  ways  :  by  the  agency  of  courts  and  ministers  of 
justice,  or  by  military  force ;  by  the  COERCION  of  the  magistracy,  or  the  COER- 
CION of  arms.  The  first  kind  can  evidently  apply  only  to  men ;  the  last  kind 
must  of  necessity  be  employed  against  bodies  politic  or  communities  or  states. 
It  is  evident  that  there  is  no  process  of  a  court,  by  which  their  observance  of 
the  laws  can,  in  the  last  resort,  be  enforced.  Sentences  may  be  denounced 
against  them  for  violation  of  their  duty ;  but  these  sentences  can  only  be  car- 
ried into  execution  by  the  sword.  In  an  association  where  the  general  author- 
ity is  confined  to  the  collective  bodies  of  the  communities  that  compose  it, 
every  breach  of  the  laws  must  involve  a  state  of  war,  and  military  execution 
must  become  the  only  instrument  of  civil  obedience.  Such  a  state  of  things 
can  certainly  not  deserve  the  name  of  government,  nor  would  any  prudent  man 
choose  to  commit  his  happiness  to  it.  ... " 


540  EXTRACTS  FROM  THE  FEDERALIST. 

NUMBER  XX. 
[Hamilton  &  Madison.] 

.  .  .  Experience  is  the  oracle  of  truth ;  and  when  its  responses  are  unequivo- 
cable,  they  ought  to  be  conclusive  and  sacred.  The  important  truth,  which 
it  unequivocally  pronounces  in  the  present  case,  is,  that  a  sovereignty  over  sove- 
reigns, a  government  over  governments,  a  legislation  for  communities,  as  con- 
tradistinguished from  individuals ;  as  it  is  a  solecism  in  theory,  so  in  practice, 
it  is  subversive  of  the  order  and  ends  of  civil  polity,  by  substituting  violence 
in  the  place  of  law,  or  the  destructive  coercion  of  the  sword,  in  the  place  of  the 
mild  and  salutary  coercion  of  the  magistracy,  ..." 

NUMBER  XXVII. 
[Hamilton.] 

"...  The  hope  of  impunity,  is  a  strong  incitement  to  sedition ;  the  dread  of 
punishment,  a  proportionably  strong  discouragement  to  it.  Will  not  the  gov- 
ernment of  the  union,  which,  if  possessed  of  a  due  degree  of  power,  can  call  to 
its  aid  the  collective  resources  of  the  whole  confederacy,  be  more  likely  to 
repress  the  former  sentiment,  and  to  inspire  the  latter,  than  that  of  a  single  state, 
which  can  only  command  the  resources  within  itself?  A  turbulent  faction  in  a 
state,  may  easily  suppose  itself  able  to  contend  with  the  friends  to  the  govern- 
ment in  that  state ;  but  it  can  hardly  be  so  infatuated,  as  to  imagine  itself  equal 
to  the  combined  efforts  of  the  union.  If  this  reflection  be  just,  there  is  less 
danger  of  resistance  from  irregular  combinations  of  individuals,  to  the  au- 
thority, of  the  confederacy,  than  to  that  of  a  single  member. 

NUMBER  XXXIX. 
[Madison.] 

"  THE  CONFORMITY  OF  THE  PLAN  TO  REPUBLICAN  PRINCIPLES.    AN  OBJEC- 
TION IN  RESPECT  TO  THE   POWERS  OF  THE   CONVENTION,   EXAMINED. 

"  The  last  paper  having  concluded  the  observations,  which  were  meant  to 
introduce  a  candid  survey  of  the  plan  of  government  reported  by  the  con- 
vention, we  now  proceed  to  the  execution  of  that  part  of  our  undertaking. 

The  first  question  that  offers  itself  is,  whether  the  general  form  and  aspect  of 
the  government  is  strictly  republican  ?  It  is  evident  that  no  other  form  would 
be  reconcilable  with  the  genius  of  the  people  of  America ;  with  the  fundamental 
principles  of  the  revolution ;  or  with  that  honorable  determination  which  ani- 
mates every  votary  of  freedom,  to  rest  all  our  political  experiments  on  the 
capacity  of  mankind  for  self-government.  If  the  plan  of  the  convention,  there- 
fore, be  found  to  depart  from  the  republican  character,  its  advocates  must 
abandon  it  as  no  longer  defensible. 

On  comparing  the  constitution  planned  by  the  convention,  with  the  standard 
here  fixed,  we  perceive  at  once,  that  it  is,  in  the  most  rigid  sense,  conformable 


APPENDIX  D.  541 

to  it.  The  house  of  representatives,  like  that  of  one  branch  at  least  of  all  the 
state  legislatures,  is  elected  immediately  by  the  great  body  of  the  people.  The 
senate,  like  the  present  congress,  and  the  senate  of  Maryland,  derives  its  ap- 
pointment indirectly  from  the  people.  The  president  is  indirectly  derived  from 
the  choice  of  the  people,  according  to  the  example  in  most  of  the  states.  Even 
the  judges  with  all  other  officers  of  the  union,  will,  as  in  the  several  states,  be  the 
choice,  though  a,  remote  choice,  of  the  people  themselves.  The  duration  of 
the  appointments  is  equally  conformable  to  the  republican  standard,  and  to  the 
model  of  the  state  constitutions. 

"...  But  it  was  not  sufficient,  say  the  adversaries  of  the  proposed  constitu- 
tion, for  the  convention  to  adhere  to  the  republican  form.  They  ought,  with 
equal  care,  to  have  preserved  the  federal  form,  which  regards  the  union  as  a 
confederacy  of  sovereign  states ;  instead  of  which,  they  have  framed  a  national 
government,  which  regards  the  union  as  a  consolidation  of  the  states.  And  it 
is  asked,  by  what  authority  this  bold  and  radical  innovation  was  undertaken  ? 
The  handle  which  has  been  made  of  this  objection  requires  that  it  should  be 
examined  with  some  precision. 

"  Without  inquiring  into  the  accuracy  of  the  distinction  on  which  the  objec- 
tion is  founded,  it  will  be  necessary  to  a  just  estimate  of  its  force,  first,  to 
ascertain  the  real  character  of  the  government  in  question.  .  .  . 

"  First.  In  order  to  ascertain  the  real  character  of  the  government,  it  may 
be  considered  in  relation  to  the  foundation  on  which  it  is  to  be  established ; 
to  the  sources  from  which  its  ordinary  powers  are  to  be  drawn ;  to  the  opera- 
tion of  those  powers  ;  to  the  extent  of  them ;  and  to  the  authority  by  which 
future  changes  in  the  government  are  to  be  introduced. 

"  On  examining  the  first  relation,  it  appears,  on  one  hand,  that  the  constitu- 
tion is  to  be  founded  on  the  assent  and  ratification  of  the  people  of  America, 
given  by  deputies  elected  for  the  special  purpose ;  but  on  the  other,  that  this 
assent  and  ratification  is  to  be  given  by  the  people,  not  as  individ- 
uals composing  one  entire  nation,  but  as  composing  the  distinct 
and  independent  states  to  which  they  respectively  belong.  It  is  to  be 
the  assent  and  ratification  of  the  several  states,  derived  from  the 
supreme  authority  in  each  state  — .the  authority  of  the  people  them- 
selves. The  act,  therefore,  establishing  the  constitution,  will  not  be  a 
national,,  but  a  federal  act. 

"  That  it  will  be  a  federal,  and  not  a  national  act,  as  these  terms  are  under- 
stood by  the  objectors,  the  act  of  the  people,  as  forming  so  many  independent 
states,  not  as  forming  one  aggregate  nation,  is  obvious  from  this  single  consid- 
eration, that  it  is  to  result  neither  from  the  decision  of  a  majority  of  the  people 
of  the  union,  nor  from  that  of  a  majority  of  the  states.  It  must  result  from 
the  unanimous  assent  of  the  several  states  that  are  parties  to  it,  differing  no 
otherwise  from  their  ordinary  assent  than  in  its  being  expressed,  not  by  the 
legislative  authority,  but  by  that  of  the  people  themselves.  Were  the  people 
regarded  in  this  transaction  as  forming  one  nation,  the  will  of  the  majority  of 
the  whole  people  of  the  United  States  would  bind  the  minority ;  in  the  same 
manner  as  the  majority  in  each  state  must  bind  the  minority ;  and  the  will  of 
the  majority  must  be  determined  either  by  a  comparison  of  the  individual  votes, 
or  by  considering  the  will  of  the  majority  of  the  states,  as  evidence  of  the  will 
of  a  majority  of  the  people  of  the  United  States.  Neither  of  fliese  rules  has 
been  adopted.  Each  state,  in  ratifying  the  constitution,  is  considered 
as  a  sovereign  body,  independent  of  all  others,  and  only  to  be  bound 
by  its  own  voluntary  act.  In  this  relation,  then,  the  new  constitution  will, 
if  established,  be  a  federal.,  and  not  a  national  constitution. 

"  The  next  relation  is,  to  the  sources  from  which  the  ordinary  powers  of  gov- 
ernment are  to  be  derived.  The  house  of  representatives  will  derive  its  powers 


542  EXTRACTS  FROM  THE  FEDERALIST. 

from  the  people  of  America,  and  the  people  will  be  represented  in  the  same 
proportion,  and  on  the  same  principle,  as  they  are  in  a  legislature  of  a  particu- 
lar state.  So  far  the  government  is  national,  raoi  federal.  The  senate,  on  the 
other  hand,  will  derive  its  powers  from  the  states,  as  political  and  coequal 
societies ;  and  these  will  be  represented  on  the  principle  of  equality  in  the  senate, 
as  they  now  are  in  the  existing  congress.  So  far  the  government  '^federal,  not 
national.  The  executive  power  will  be  derived  from  a  very  compound  source. 
The  immediate  election  of  the  president  is  to  be  made  by  the  states  in  their 
political  characters.  The  votes  allotted  to  them  are  in  a  compound  ratio,  which 
considers  them  partly  as  distinct  and  coequal  societies ;  partly  as  unequal  mem- 
bers of  the  same  society.  The  eventual  election,  again,  is  to  be  made  by  the 
branch  of  the  legislature  which  consists  of  the  national  representatives ;  but  in 
this  particular  act,  they  are  to  be  thrown  into  the  form  of  individual  delega- 
tions, from  so  many  distinct  and  coequal  bodies  politic.  From  this  aspect  of 
the  government,  it  appears  to  be  of  a  mixed  character,  presenting  at  least  as 
many  federal  as  national  features. 

"  The  difference  between  a  federal  and  national  government,  as  it  relates  to  the 
operation  of  the  government,  is,  by  the  adversaries  of  the  plan  of  the  conven- 
tion, supposed  to  consist  in  this,  that  in  the  former,  the  powers  operate  on  the 
political  bodies  composing  the  confederacy,  in  their  political  capacities;  in  the 
latter,  on  the  individual  citizens  composing  the  nation,  in  their  individual  capaci- 
ties. On  trying  the  constitution  by  this  criterion,  it  falls  under  the  national, 
not  the  federal  character ;  though  perhaps  not  so  completely  as  has  been  under- 
stood. In  several  cases,  and  particularly  in  the  trial  of  controversies  to  which 
states  may  be  parties,  they  must  be  viewed  and  proceeded  against  in  their  col- 
lective and  political  capacities  only.  But  the  operation  of  the  government  on 
the  people  in  their  individual  capacities,  in  its  ordinary  and  most  essential  pro- 
ceedings, will,  on  the  whole,  in  the  sense  of  its  opponents,  designate  it,  in  this 
relation,  a  national  government. 

"  But  if  the  government  be  national,  with  regard  to  the  operation  of  its  powers, 
it  changes  its  aspect  again,  when  we  contemplate  it  in  relation  to  the  extent  of 
its  powers.  The  idea  of  a  national  government  involves  in  it  not  only  an  au- 
thority over  the  individual  citizens,  but  an  indefinite  supremacy  over  all  per- 
sons and  things,  so  far  as  they  are  objects  of  lawful  government.  Among  a 
people  consolidated  into  one  nation,  this  supremacy  is  completely 
vested  in  the  national  legislature.  Among  communities  united  for 
particular  purposes,  it  is  vested  partly  in  the  general,  and  partly  in 
the  municipal  legislatures.  In  the  former  case,  all  local  authorities 
are  subordinate  to  the  supreme ;  and  may  be  controlled,  directed, 
or  abolished  at  pleasure.  In  the  latter,  the  local  or  municipal  au- 
thorities form  distinct  and  independent  portions  of  the  supremacy, 
no  more  subject  -within  their  respective  spheres,  to  the  general  au- 
thority, than  the  general  authority  is  subject  to  them  within  its  own 
sphere.  In  this  relation,  then,  the  proposed  government  cannot  be 
deemed  a  national  one;  since  its  jurisdiction  extends  to  certain 
enumerated  objects  only,  and  leaves  to  the  several  states  a  residu- 
ary and  inviolable  sovereignty  [i.  e.  government]  over  all  other  objects. 
It  is  true  that  in  controversies  relating  to  the  boundary  between  the  two  juris- 
dictions, the  tribunal  which  is  ultimately  to  decide,  is  to  be  established  under 
the  general  government.  But  this  does  not  change  the  principle  of  the  case. 
The  decision  is  to  be  impartially  made,  according  to  the  rules  of  the  constitu- 
tion ;  and  all  the  usual  and  most  effectual  precautions  are  taken  to  secure  this 
impartiality.  Some  such  tribunal  is  clearly  essential  to  prevent  an  appeal  to 
the  sword,  and  a  dissolution  of  the  compact;  and  that  it  ought  to  be  estab- 
lished under  the  general,  rather  than  under  the  local  governments ;  or,  to  speak 


APPENDIX  D.  543 

more  properly,  that  it  could  be  safely  established  under  the  first  alone,  is  a 
position  not  likely  to  be  combated. 

"  If  we  try  the  constitution  by  its  last  relation,  to  the  authority  by  which 
amendments  are  to  be  made,  we  find  it  neither  wholly  national,  nor  wholly 
federal.  Were  it  wholly  national,  the  supreme  and  ultimate  authority  would 
reside  in  the  majority  of  the  people  of  the  union ;  and  this  authority  would  be 
competent  at  all  times,  like  that  of  a  majority  of  every  national  society,  to  alter 
or  abolish  its  established  government.  Were  it  wholly  federal  on  the  other 
hand,  the  concurrence  of  each  state  in  the  union  would  be  essential  to  every 
alteration  that  would  be  binding  on  all.  The  mode  provided  by  the  plan  of  the 
convention,  is  not  founded  on  either  of  these  principles.  In  requiring  more 
than  a  majority,  and  particularly,  in  computing  the  proportion  by  states,  not  by 
citizens,  it  departs  from  the  national,  and  advances  towards  the  federal  char- 
acter. In  rendering  the  concurrence  of  less  than  the  whole  number  of  states 
sufficient,  it  loses  again  \\\z  federal,  and  partakes  of  the  national  character. 

"  The  proposed  constitution,  therefore,  even  when  tested  by  the  rules  laid 
down  by  its  antagonists,  is,  in  strictness,  neither  a  national  nor  a  federal  con- 
stitution; but  a  composition  of  both.  In  its  foundation  it  is  federal,  not 
national ;  in  the  sources  from  which  the  ordinary  powers  of  the  government 
are  drawn,  it  is  partly  federal,  and  partly  national ;  in  the  operation  of  these 
powers,  it  is  national,  not  federal ;  in  the  extent  of  them  again,  it  is  federal, 
not  national ;  and  finally  in  the  authoritative  mode  of  introducing  amendments, 
it  is  neither  wholly  federal,  nor  wholly  national." 

NUMBER  XL. 
[Madison.] 

"  Will  it  be  said,  that  the  fundamental  principles  of  the  confederation  were  not 
within  the  purview  of  the  convention,  and  ought  not  to  have  been  varied  ?  I 
ask,  what  are  these  principles  ?  Do  they  require,  that  in  the  establishment  of 
the  constitution,  the  states  should  be  regarded  as  distinct  and  independent 
sovereigns  ?  They  are  so  regarded  by  the  constitution  proposed.  ..." 

NUMBER  XLII. 
[Madison.] 

".*.  .  The  provision  of  the  federal  articles  on  the  subject  of  piracy, 
extends  no  further  than  to  the  establishment  of  courts  for  the  trial  of  these 
offences.  .  .  . 

The  necessity  of  a  superintending  authority  over  the  reciprocal  trade  of 
confederated  states  has  been  illustrated  by  other  examples  as  well  as  our 
own.  ..." 

NUMBER  XLV. 
[Madison.] 

"  The  number  of  individuals  employed  under  the  constitution  of  the  United 
States,  will  be  much  smaller  than  the  number  employed  under  the  particular 
states.  There  will  consequently  be  less  of  personal  influence  on  the  side  of  the 
former  than  of  the  latter.  The  members  of  the  legislative,  executive,  and 
judiciary  departments  of  thirteen  and  more  states;  the  justices  of  peace, 
officers  of  militia,  ministerial  officers  of  justice,  with  all  the  county,  corpora- 


544  EXTRACTS  FROM  THE  FEDERALIST. 

tion,  and  town  officers,  for  three  millions  and  more  of  people,  intermixed,  and 
having  particular  acquaintance  with  every  class  and  circle  of  people,  must 
exceed  beyond  all  proportion,  both  in  number  and  influence,  those  of  every 
description  who  will  oe  employed  in  the  administration  of  the  federal 
system.  .  .  . 

"  It  is  true  that  the  confederacy  is  to  possess,  and  may  exercise  the  power 
of  collecting  internal  as  well  as  external  taxes  throughout  the  states :  but  it  is 
probable  that  this  power  will  not  be  resorted  to,  except  for  supplemental  pur- 
poses of  revenue.  .  .  . 

"  The  powers  delegated  by  the  proposed  constitution  to  the  federal  govern- 
ment, are  few  and  denned.  Those  which  are  to  remain  in  the  state  govern- 
ments, are  numerous  and  indefinite.  The  former  will  be  exercised  principally 
on  external  objects,  as  war,  peace,  negotiation,  and  foreign  commerce ;  with 
which  last  the  power  of  taxation,  will  for  the  most  part,  be  connected.  The 
powers  reserved  to  the  several  states  will  extend  to  all  the  objects,  which,  in 
the  ordinary  course  of  affairs,  concern  the  lives,  liberties,  and  properties  of  the 
people ;  and  the  internal  order,  improvement,  and  prosperity  of  the  state.  .  .  . 

"  If  the  new  constitution  be  examined  with  accuracy  and  candour,  it  will  be 
found  that  the  change  which  it  proposes,  consists  much  less  in  the  addition  of 
NEW  POWERS  to  the  union,  than  in  the  invigoration  of  its  ORIGINAL  POWERS. 
The  regulation  of  commerce,  it  is  true,  is  a  new  power ;  but  tiiat  seems  to  be 
an  addition  which  few  oppose,  and  from  which  no  apprehensions  are  enter- 
tained.  The  powers  relating  to  war  and  peace,  armies  and  fleets,  treaties  and 
finance,  with  the  other  more  considerable  powers,  are  all  vested  in  the  existing 
congress  by  the  articles  of  confederation.  The  proposed  change  does  not  en- 
large these  powers ;  it  only  substitutes  a  more  effectual  mode  of  administering 
them.  The  change  relating  to  taxation,  may  be  regarded  as  the  most  impor- 
tant: and  yet  the  present  congress  have  as  complete  authority  to  REQUIRE 
of  the  states  indefinite  supplies  of  money  for  the  common  defence  and  general 
welfare,  as  the  future  congress  will  have  to  require  them  of  individual  citi- 
zens ;  and  the  latter  will  be  no  more  bound  than  the  states  themselves  have 
been,  to  pay  the  quotas  respectively  taxed  on  them.  ..." 

NUMBER  XLYL 
[Madison.] 

"  The  federal  and  state  governments  are  in  fact  but  different  agents 
and  trustees  of  the  people,  instituted  with  different  powers,  and  desi^iated 
for  different  purposes.  The  adversaries  of  the  constitution  seem  to  have  lost 
sight  of  the  people  altogether,  in  their  reasonings  on  this  subject ;  and  to 
have  viewed  these  different  establishments,  not  only  as  mutual  rivals  and 
enemies,  but  as  uncontrolled  by  any  common  superior,  in  their  efforts  to 
usurp  the  authorities  of  each  other.  These  gentlemen  must  here  be  reminded 
of  their  error.  They  must  be  told,  that  the  ultimate  authority,  wherever 
the  derivative  may  be  found,  resides  in  the  people  alone ;  .  .  . " 

NUMBER  LIV. 
[Hamilton.] 

"  It  is  not  probable,  that  the  richest  state  in  the  confederacy,  will  ever 
influence  the  choice  of  a  single  representative,  in  any  other  state.  Nor  will  the 
representatives  of  the  larger  and  richer  states,  possess  any  other  advantage  in 


APPENDIX  D.  545 

the  federal  legislature,  over  the  representatives  of  other  states,  than  what  may 
result  from  their  superior  number  alone;  as  far,  therefore,  as  their  superior 
wealth  and  weight  may  justly  entitle  them  to  any  advantage,  it  ought  to  be 
secured  to  them  by  a  superior  share  of  representation.  The  new  constitution 
is,  in  this  respect,  materially  different  from  the  existing  confederation,  as  well 
as  from  that  of  the  United  Netherlands,  and  other  similar  confederacies.  In 
each  of  the  latter,  the  efficacy  of  the  federal  resolutions,  depends  on  the  sub- 
sequent and  voluntary  resolutions  of  the  states  composing  the  union.  Hence 
the  states,  though  possessing  an  equal  vote  in  the  public  councils,  have  an  un- 
equal influence,  corresponding  with  the  unequal  importance  of  these  subsequent 
and  voluntary  resolutions.  Under  the  proposed  constitution,  the  fed- 
eral acts  will  take  effect  without  the  necessary  intervention  of  the  individual 
states.  They  will  depend  merely  on  the  majority  of  votes  in  the  federal  legis- 
lature, and  consequently  each  vote,  whether  proceeding  from  a  larger  or  smaller 
state,  or  a  state  more  or  less  wealthy  or  powerful,  will  have  an  equal  weight 
and  efficacy." 

NUMBER  LXXX. 
[Hamilton.] 

"To  judge  with  accuracy  of  the  due  extent  of  the  federal  judicature,  it  will 
be  necessary  to  consider  in  the  first  place  what  are  its  proper  objects. 

"  It  seems  scarcely  to  admit  of  controversy,  that  the  judiciary  authority  of  the 
union  ought  to  extend  to  these  several  descriptions  of  cases :  1st.  To  all  those 
which  arise  out  of  the  laws  of  the  united  states,  passed  in  pursuance  of  their 
just  and  constitutional  powers  of  legislation ;  2nd.  To  all  those  which  concern 
the  execution  of  the  provisions  expressly  contained  in  the  articles  of  union  ; 
3d.  To  all  those  in  which  the  united  states  are  a  party ;  4th.  To  all  those  which 
involve  the  PEACE  of  the  CONFEDERACY,  whether  they  relate  to  the  intercourse 
between  the  united  states  and  foreign  nations,  or  to  that  between  the  states 
themselves ;  5th.  To  all  those  which  originate  on  the  high  seas,  and  are  of  ad- 
miralty or  maritime  jurisdiction;  and  lastly  to  all  those  in  which  the  state 
tribunals  cannot  be  supposed  to  be  impartial  and  unbiassed.  .  .  . " 

NUMBER  LXXXV. 
[Hamilton.] 

"  I  never  expect  to  see  a  perfect  work  from  imperfect  man.  The  result  of  the 
deliberations  of  all  collective  bodies,  must  necessarily  be  a  compound  as  well 
of  the  errors  and  prejudices,  as  of  the  good  sense  and  wisdom  of  the  individ- 
uals of  whom  they  are  composed.  The  compacts  which  are  to  embrace 
thirteen  distinct  states,  in  a  common  bond  of  amity  and  union,  must 
as  necessarily  be  a  compromise  of  as  many  dissimilar  interests  and  inclinations. 
How  can  perfection  spring  from  such  materials  ?  .  .  . 

"  Every  constitution  for  the  United  States  must  inevitably  consist  of  a  great 
variety  of  particulars,  in  which  thirteen  independent  states  are  to  be 
accommodated  in  their  interests  or  opinions  of  interest.  We  may 
of  course  expect  to  see,  in  any  body  of  men  charged  with  its  original  formation, 
very  different  combinations  of  the  parts  upon  different  points.  Many  of  those 
who  form  the  majority  on  one  question,  may  become  the  minority  on  a  second, 
and,  an  association  dissimilar  to  either,  may  constitute  the  majority  on  a  third. 
Hence  the  necessity  of  moulding  and  arranging  all  the  particulars 
which  are  to  compose  the  whole,  in  such  a  manner  as  to  satisfy  all 
the  parties  to  the  compact.  ..." 

35 


APPENDIX   E. 


No  1. 

DECLARATIONS,  BILLS   OF   RIGHTS  &c.   INCLUDING   THE 
DECLARATION   OF   INDEPENDENCE. 

As  —  in  the  great  argument  between  federalization  and  nationalization  —  a 
misuse  is  made  of  the  Declaration  of  Independence  I  beg  leave  to  present  with 
it  some  of  its  antecedents,  especially  the  acts  of  some  of  the  nascent  states, 
which  authorized  their  delegations  in  congress  to  make  for  them  the  said  dec- 
laration, while  reserving  to  themselves  absolutely  the  entire  subject  of  establish- 
ing government.  All  the  people  were  distinct  states,  and  they  associated  as 
such,  in  declaring  and  achieving  independence ;  and  they  afterwards  acted  as 
such  in  confederating,  and  all  their  acts  and  declarations,  without  exception, 
are  on  the  basis  of  voluntary  union  and  co-operation  of  "  free  sovereign  and 
independent  states." 

PROCLAMATION  OF  MASSACHUSETTS  Jan'y  22,  1776. 

By  the  great  and  general  Court  of  the  colony  of  Massachusetts  Bay :  A  PROC- 
LAMATION   The  frailty  of  human  nature,  the  wants  of  individuals,  and 

the  numerous  dangers  which  surround  them  through  the  course  of  life,  have, 
in  all  ages  and  in  every  country,  impelled  them  to  form  societies  and  establish 
governments. 

As  the  happiness  of  the  people  is  the  sole  end  of  government,  so  the  consent 
of  the  people  is  the  only  foundation  of  it,  in  reason,  morality,  and  the  natural 
fitness  of  things.  And  therefore  every  act  of  government,  every  exercise  of 
sovereignty  against  or  without  the  consent  of  the  people,  is  injustice,  usurpa- 
tion and  tyranny. 

It  is  a  maxim  that  in  every  government  there  must  exist  somewhere  a 
supreme,  sovereign,  absolute  and  uncontrollable  power ;  but  this  power  resides 
always  in  the  body  of  the  people,  and  it  never  was  or  can  be  delegated  to  one 
man  or  a  few ;  the  great  Creator  having  never  given  to  men  a  right  to  vest 
others  with  authority  over  them,  unlimited  either  in  duration  or  degree. 

When  kings,  ministers,  governors,  or  legislators,  therefore,  instead  of  exer- 
cising the  powers  entrusted  with  them,  according  to  the  principles  forms  and 
proportions  stated  by  the  constitution,  and  established  by  the  original  compact 
prostitute  those  powers  to  the  purposes  of  oppression ;  to  subvert  instead  of 
supporting  a  free  constitution ;  —  to  destroy  instead  of  preserving  the  lives, 
liberties  and  properties  of  the  people ;  —  they  are  no  longer  to  be  deemed 
magistrates,  vested  with  a  sacred  character,  but  become  public  enemies  and 
ought  to  be  resisted. 


APPENDIX  E.    NO.  1.  547 

The  administration  of  Great  Britain,  despising  equally  the  justice  humanity 
and  magnanimity  of  their  ancestors,  and  the  rights,  liberties,  and  courage  of 
AMERICANS,  have,  for  a  course  of  years,  labored  to  establish  a  sovereignty  in 
America,  not  founded  on  the  consent  of  the  people,  but  in  the  mere  will  of 
persons  a  thousand  leagues  from  us,  whom  we  know  not ;  and  have  endeav- 
ored to  establish  this  sovereignty  against  our  consent  in  all  cases  whatsoever. 

The  colonies  during  this  period,  have  recurred  to  every  peaceable  resource 
in  a  free  constitution, lay  petitions  and  remonstrances,  to  obtain  justice,  which 
has  been  not  only  denied  to  them,  but  they  have  been  treated  with  unexampled 
indignity  and  contempt ;  and  at  length  open  war  of  the  most  atrocious  cruel 
and  sanguinary  kind  has  been  commenced  against  them.  To  this  an  open, 
manly  and  successful  resistance  has  hitherto  been  made  ;  thirteen  colonies  are 
now  firmly  united  in  the  conduct  of  this  most  just  and  necessary  war,  under 
the  wise  councils  of  their  congress. 

It  is  the  Will  of  Providence,  for  wise,  righteous  and  gracious  Ends,  that  this 
Colony  should  have  been  singled  out  by  the  Enemies  of  America,  as  the  first 
Object,  both  of  their  Envy  and  their  Revenge ;  and  after  having  been  made 
the  Subject  of  Several  merciless  and  vindictive  Statutes,  one  of  which  was 
intended  to  subvert  our  Constitution  by  Charter,  is  made  the  Seat  of  War. 

No  effectual  Resistance  to  the  System  of  Tyranny  prepared  for  us,  could  be 
made  without  either  instant  Recourse  to  Arms  or  a  temporary  Suspension  of 
the  ordinary  Powers  of  Government,  and  Tribunals  of  Justice;  to  the  last 
of  which  Evils,  in  hopes  of  a  Speedy  Reconciliation  with  Great  Britain,  upon 
equitable  Terms,  the  Congress  advised  us  to  Submit ;  and  Mankind  has  seen  a 
Phenomenon  without  Example  in  the  political  World,  a  large  and  populous 
Colony  Subsisting  in  great  Decency  and  Order,  for  more  than  a  Year  under 
such  a  Suspension  of  Government. 

But  as  our  Enemies  have  proceeded  to  such  barbarous  Extremities,  com- 
mencing Hostilities  upon  the  good  People  of  this  Colony,  and  with  unprece- 
dented Malice  exerting  their  Power  to  Spread  the  Calamities  of  Fire,  Sword 
arid  Famine  through  the  Land,  and  no  reasonable  Prospect  remains  of  a 
Speedy  Reconciliation  with  Great  Britain,  the  Congress  have  resolved  "  That 
no  Obedience  being  due  to  the  Act  of  Parliament  for  altering  the  Charter  of  the 
Colony  of  Massachusetts  Bay,  nor  to  a  Governor  or  Lieutenant  Governor  who 
will  not  observe  the  Directions  of,  but  endeavor  to  Subvert  that  Charter,  the 
Governor  and  Lieutenant  Governor  of  that  Colony  are  to  be  considered  as 
Absent  and  their  Offices  vacant ;  and  as  there  is  no  Council  there,  and  Incon- 
veniences arising  from  the  Suspension  of  the  Powers  of  Government  are 
intolerable,  especially  at  a  time  when  General  Gage  hath  actually  levied  War 
and  is  carrying  on  Hostilities  against  his  Majesty's  peaceable  and  loyal  sub- 
jects of  that  Colony ;  that,  in  order  to  conform  as  near  as  may  be  to  the  Spirit 
and  Substance  of  the  Charter,  it  be  recommended  to  the  Provincial  Convention 
to  write  Letters  to  the  Inhabitants  of  the  Several  Places  which  are  intituled  to 
Representation  in  Assembly,  requesting  them  to  chuse  such  Representatives, 
and  that  the  Assembly  when  chosen,  do  elect  Councillors  ;  and  that  such  As- 
sembly and  Council  exercise  the  Powers  of  Government,  untill  a  Governor  of 
his  Majesty's  Appointment  will  consent  to  govern  the  Colony,  according  to  its 
Charter."  ' 

In  Pursuance  of  which  Advice,  the  good  People  of  this  Colony  have  chosen 
a  full  and  free  Representation  of  themselves,  who,  being  convened  in  Assem- 
bly have  elected  a  Council,  who  as  the  executive  Branch  of  Government  have 
constituted  necessary  Officers  through  the  Colony.  The  present  Generation, 
therefore,  may  be  congratulated  on  the  Acquisition  of  a  Form  of  Government, 
more  immediately  in  all  its  Branches  under  the  Influence  and  Control  of  the 
People,  and  therefore  more  free  and  happy  than  was  enjoyed  by  their  Ances- 
tors ;  But  as  a  Government  so  popular  can  be  supported  only  by  universal 


548  DECLARATIONS,  BILLS  OF  RIGHTS,  ETC. 

Knowledge  and  Virtue,  in  the  Body  of  the  People,  it  is  the  Duty  of  all  Ranks 
to  promote  the  Means  of  Education  for  the  rising  Generation,  as  well  as  true 
Religion,  Purity  of  Manners,  and  Integrity  of  Life  among  all  orders  and 
Degrees. 

As  an  Army  has  become  necessary  for  our  Defence  and  in  all  free  States  the 
civil  must  provide  for  and  controul  the  military  Power,  the  Major  Part  of  the 
Council  have  appointed  Magistrates  and  Courts  of  Justice  in  every  County, 
whose  Happiness  is  so  connected  with  that  of  the  People  that  it  is  difficult  to 
Suppose  they  can  abuse  their  Trust.  The  Business  of  it  is  to  see  those  Laws 
inforced  which  are  necessary  for  the  Preservation  of  Peace,  Virtue  and  good 
Order,  and  the  great  and  general  Court  expects  and  requires  that  all  necessary 
Support  and  Assistance  be  given  and  all  proper  Obedience  yielded  to  them, 
and  will  deem  every  Person  who  shall  fail  of  his  Duty  in  this  Respect  towards 
them,  a  disturber  of  the  Peace  of  this  Colony  and  deserving  of  exemplary 
Punishment.  .  .  . 

IN  COUNCIL  JANUARY  19,  1776. 

Ordered  that  the  foregoing  proclamation  be  read  at  the  Opening  of  Every 
Superior  Court  of  Judicature  &c  and  Inferiour  Court  of  Common  Pleas  and 
Court  of  General  Sessions  for  the  Peace  within  this  Colony  by  their  Respective 
Clerks,  and  at  the  Annual  Townmeetings  in  March  in  each  Town ;  and  it  is 
hereby  Recommended  to  the  several  Ministers  of  the  Gospel  throughout  this 
Colony  to  Read  the  Same  in  their  Respective  Assemblys  on  the  Lords  Day 
next  after  their  Receiving  it  immediately  after  the  Divine  Service. 

Consented  to  —  Sent  down  for  Concurrence 

W.  SEVER  CHA.  CHAUNCY  PEREZ  MORTON 

WALTER  SPOONER       J.  PALMER  Dpy  Secry 

CALEB  GUSHING          JOHN  TAYLOR 
J  WINTHROP  B.  WHITE 

S  CUSHING         .         JAMES  PRESCOTT 
JOHN  WHITCOMB 
JED?   FOSTER 
ELDAD  TAYLOR 

MOSES  GILL  In  the  House  of  Representatives  January  22d  1776 

M.  FARLEY  •  Read  and  Concurred. 

SAMV  HOTTEN  WILLIAM  COOPER  Speak*  Pro  Tern' 

NOTE.  —  The  foregoing  copied  from  Mass  Archives,  Vol.  CXXXVIII.  pp  281-284. 


RESOLUTIONS  OF  VIRGINIA 

May  15th  1776. 
In  the  Virginia  Convention — present  112  members. 

WEDNESDAY  May  15th  1776. 

.  .  .  RESOLVED  UNANIMOUSLY,  That  the  delegates  appointed  to  represent 
this  colony  in  the  general  Congress,  be  instructed  to  propose  to  that  respect- 
able body  to  declare  the  united  Colonies  free  and  independent  states,  absolved 
from  all  allegiance  to  or  dependence  upon  the  crown  or  parliament  of  Great 
Britain,  and  that  they  give  the  assent  of  this  Colony  to  such  declaration  and  to 
whatever  measures  may  be  thought  proper  and  necessary  by  the  Congress  for 
forming  foreign  alliances  and  A  CONFEDERATION  OF  THE  COLONIES,  at  such  time 


APPENDIX  E.    NO.  1.  549 

and  in  the  manner  as  to  them  shall  seem  best  Provided  that  the  power  of 
forming  government  for  and  the  regulation  of  the  internal  concerns  of  each 
colony,  be  left  to  the  respective  colonial  legislatures. 

RESOLVED  UNANIMOUSLY,  That  a  committee  be  appointed  to  prepare  A. 
DECLARATION  OP  RIGHTS  and  sucli  a  plan  of  government  as  will  be  most  likely 
to  maintain  peace  and  order  in  this  colony,  and  secure  substantial  and  equal 
liberty  to  the  people. 

EDMUND  PENDLETON  President. 

It  is  recorded  by  Jefferson  [his  Works,  Vol.  I.  p.  10,  also  I.  Ell.  Deb.  56] 
that  "  in  Congress  June  7,  1776,"  on  the  above  basis,  "  the  delegates  of 
VIRGINIA,  moved,  in  obedience  to  instructions  from  their  constituents,  that 
the  congress  should  declare  that  these  united  colonies  are,  and  of  right  ought 
to  be,  free  and  independent  states  .  .  .  [and]  that  a  confederation  be  formed 
to  bind  the  colonies  more  closely  together." 

On  June  25,  1776,  congress  recorded  receipt  of  the  declaration  of  the 
deputies  of  PENNSYLVANIA,  met  in  provincial  conference,  that  they  were  will- 
ing to  concur  in  a  vote  of  congress,  declaring  the  united  colonies  free  and 
independent  states.  [See  p.  277  supra.] 

On  June  28,  it  is  recorded  that  Francis  Hopkinson  and  other  delegates  were 
instructed  by  NEW  JERSEY  as  follows  :  "If  you  shall  judge  it  necessary  or 
expedient  for  this  purpose,  we  empower  you  to  join  in  declaring  the  united 
colonies  independent  of  Great  Britain,  entering  into  a  confederation  for  union 
and  common  defence. 

The  position  and  views  of  NEW  YORK  on  this  great  subject,  precisely  quad- 
rate with  the  theory  hereof,  and  are  to  be  found  on  p.  336  supra. 

MARYLAND,  June  28,  "  authorized  and  empowered  "  her  deputies  in  con- 
gress to  "  concur  in  declaring  the  united  colonies  free  and  independent  states; 
in  forming  such  further  compact  and  confederation  between  them,"  etc. 

Ultimately  thirteen  independent  wills  became  "unanimous"  on  the  great 
subject;  but  on  June  11  it  was  found  that  several  colonies  "were  not  yet 
matured  for  falling  from  the  parent  stem,  but  that  they  were  fast  advancing  to 
that  state;"  so  the  subject  was  postponed  to  July  1,  and  Jefferson,  Adams, 
Franklin,  Sherman,  and  Livingston  were  appointed  a  committee  to  prepare  a 
declaration  in  the  meanwhile. 

July  2,  1776,  Congress  agreed  to  the  following  resolution  :  — 

"  Resolved  That  these  united  colonies  are,  and,  of  right,  ought  to  be,  free  and 
independent  States ;  that  they  are  absolved  from  all  allegiance  to  the  British 
crown,  and  that  all  political  connection  between  them  and  the  state  of  Great 
Britain  is,  and  ought  to  be  totally  dissolved." 

July  4,  1776,  the  Declaration  of  Independence  was  agreed  to,  and  probably 
the  first  signatures  were  affixed,  though  I  believe  it  was  a  month  before  all 
the  deputies  signed. 

The  following  is  the  instrument  as  reported  by  the  above-named  committee, 
and  duly  signed  by  the  deputies  from  the  different  states.  The  baseless  or 
perverted  ideas  concerning  this  immortal  manifesto  will  be  appreciated  by 
noting  the  following  facts :  — 

1.  The  declarants  were  nascent  states  in  congress,  — these  being  the  people 
in  their  only  form  and  capacity  for  political  action,  represented  as  bodies  in 
congress  by  their  deputies. 

2.  "  Unanimous  "  means  that  the  thirteen  independent  and  equal  minds  were 
of  one  mind  in  said  declaration. 

3.  Each  mind  or  will,  as  shown  by  the  resolutions  or  instructions,  was  con- 
sidered as  giving  the  only  authority  the  said  Congress  had  to  make  the  said 
declaration.     It  was  a  revolutionary  body,  with  large  discretion,  ex  necessitate  ; 
but  the  States  themselves  were,  as  societies  of  people,  the  revolutionists. 


550  DECLARATIONS,  BILLS  OF  RIGHTS,  ETC. 

4.  These  bodies  willed  to  act  together.     Such  coaction  was  entirely  volun- 
tary.     And,    when   they    formulated   their   government,    they   declared   and 
pledged  the  faith  of  all  to  each,  that  each  was  sovereign,  and  that  no  powers 
whatever  were  out  of  her  and  in  Congress,  but  such  as  were  delegated  or 
intrusted  by  the  state  they  belonged  to. 

5.  The  word  "united"  is  written  with  a  small  u,  showing  that  it  was  used 
in  the  well-known  sense  of  an  adjective  or  describing  word,  qualifying  states 
or  societies  of  people,  —  commonwealths.     Fifteen  or  twenty  years  ago  several 
able  men  agreed  with  me  as  to  the  significancy  of  this  fact,  and  within  the  last 
two  or  three  years  Prof.  Von  Hoist  told  me  he  regarded  it  as  very  important 
in  the  controversy. 

6.  The  Declaration  could  have  had  nothing  to  do  with  the  formation  of 
either  society  or  government,  for  societies  were  fully  formed  and  complete  for 
action,  before  it  was  made  ;  and  they  proceeded  afterwards  —  acting  through 
their  home  governments,  already  independently  formed  —  to  create  a  federal 
one,  by  articles  of  union. 

7.  And,  finally,  it  does  not  profess  to  touch  the  subject  either  of  society- 
forming  or  government-forming,  but  simply  declares  principles,  and  reasons 
for  sundering  British  ties,  and  winds  up  by  declaring  them  sundered. 


IN  CONGRESS,  JULY  4,  1776. 
CL  (K  unanimous  tirrlaratton  of  tjjr  thirteen  unttrti  States  of  America, 


in  the  Course  of  human  events,  it  becomes  necessary  for  one  people 
to  dissolve  the  political  bands  which  have  connected  them  with  another,  and 
to  assume,  among  the  powers  of  the  earth,  the  separate  and  equal  station  to 
which  the  Laws  of  Nature  and  of  Nature's  God  entitle  them,  a  decent  respect 
to  the  opinions  of  mankind  requires  that  they  should  declare  the  causes  which 
impel  them  to  the  separation.  -  We  hold  these  truths  to  be  self-evident, 
that  all  men  are  created  equal  ;  that  they  are  endowed  by  their  Creator  with 
certain  unalienable  Rights  ;  that  among  these  are  Life,  Liberty,  and  the  pursuit 
of  Happiness.  —  That  to  secure  these  rights,  Governments  are  instituted 
among  Men,  deriving  their  just  powers  from  the  consent  of  the  governed,  — 
That  whenever  any  Form  of"  Government  becomes  destructive  of  these  ends,  it 
is  the  Rijjrht  of  the  People  to  alter  or  to  abolish  it,  and  to  institute  new  Govern- 
ment. laying  its  foundation  on  such  principles  and  organizing  its  powers  in 
such  form,  as  to  them  shall  seem  most  likely  to  effect  their  Safety  and  Happi- 
ness. Prudence,  indeed,  will  dictate  that  Governments  long  established  should 
not  be  changed  for  light  and  transient  causes  ;  and  accordingly  all  experience 
hath  shown,  that  mankind  are  more  disposed  to  suffer,  while  evils  are  suffer- 
able,  than  to  right  themselves  by  abolishing  the  forms  to  which  they  are 
accustomed.  But  when  a  long  train  of  abuses  and  usurpations,  pursuing 
invariably  the  same  Object,  evinces  a  design  to  reduce  them  under  absolute 
Despotism,  it  is  their  right,  it  is  their  duty,  to  throw  off  such  Government, 
and  to  provide  new  Guards  for  their  future  security.  —  Such  has  been  the 
patient  sufferance  of  these  Colonies  ;  and  such  is  now  the  necessity  which 
constrains  them  to  alter  their  former  Systems  of  Government.  The  history  of 
the  present  King  of  Great  Britain  is  a  history  of  repeated  injuries  and  usurpa- 
tions, all  having  in  direct  object  the  establishment  of  an  absolute  Tyranny  over 
these  States.  To  prove  this,  let  Facts  be  submitted  to  a  candid  world.  - 
He  has  refused  his  Assent  to  Laws,  the  most  wholesome  and  necessary  for  the 
public  good.  -  He  has  forbidden  his  Governors  to  pass  Laws  of  immediate 
and  pressing  importance,  unless  suspended  in  their  operation  till  his  Assent 


APPENDIX  E.    NO.  1.  551 

should  be  obtained ;  and  when  so  suspended  he  has  utterly  neglected  to  attend 

to  them. He  has  refused  to  pass  other  Laws  for  the  accommodation  of  large 

districts  of  people,  unless  those  people  would  relinquish  the  right  of  Repre- 
sentation in  the  Legislature,  a  right  inestimable  to  them  and  formidable  to 

tyrants  only. He  has  called  together  legislative  bodies  at  places  unusual, 

uncomfortable,  and  distant  from  the  depository  of  their  Public  Records,  for 

the  sole  purpose  of  fatiguing  them  into  compliance  with  his  measures. 

Uc  has  dissolved  Representative  Houses  repeatedly,  for  opposing  with  manly 

firmness  his  invasions  on  the  rights  of  the  People. He  has  refused  for 

a  long  time,  after  such  dissolution,  to  cause  others  to  be  elected  ;  whereby  the 
Legislative  Powers,  incapable  of  Annihilation,  have  returned  to  the  People  at 
large  for  their  exercise  ;  the  State  remaining  in  the  mean  time  exposed  to  all 

the  dangers  of  invasion   from  without,  and  convulsions  within. He  has 

endeavoured  to  prevent  the  Population  of  these  States;  for  that  purpose 
obstructing  the  Law  for  Naturalization  of  Foreigners;  refusing  to  pass  others 
to  encourage  their  migrations  hither,  and  raising  the  conditions  of  new 

Appropriations  of  Lands. He  has  obstructed  the  Administration  of  Justice, 

by  refusing  his  Assent  to  Laws  for  establishing  Judiciary  Powers. He  has 

made  Judges  dependent  on  his  Will  alone,  for  the  tenure  of  their  offices,  and 

the  amount  and  payment  of  their  salaries. He  lias  erected  a  multitude  of 

New  Offices,  and  sent  hither  swarms  of  Officers  to  harrass  our  People,  and  eat 

out  their  substance He  has  kept  among  us  in  times  of  peace,  Standing 

Armies  without  the  Consent  of  our  legislatures. He  has  affected  to  ren- 
der the  Military  independent  of  and  superior  to  the  Civil  Power. He  has 

combined  with  others  to  subject  us  to  a  jurisdiction  foreign  to  our  constitu- 
tion, and  unacknowledged  by  our  laws ;  giving  his  Assent  to  their  Acts  of 
pretended  Legislation  :  —  For  Quartering  large  bodies  of  armed  troops  among 
us  :  —  For  protecting  them,  by  a  mock  Trial,  from  Punishment  for  any  Mur- 
ders which  they  should  commit  on  the  Inhabitants  of  these  States  :  —  For 
cutting  off  our  Trade  with  all  parts  of  the  world :  —  For  imposing  Taxes 
on  us  without  our  Consent :  —  For  depriving  us  in  many  cases,  of  the  bene- 
fits of  Trial  by  Jury  :  —  For  transporting  us  beyond  Seas  to  be  tried  for 
pretended  offences  :  —  For  abolishing  the  free  System  of  English  Laws  in 
a  neighbouring  Province,  establishing  therein  an  Arbitrary  government,  and 
enlarging  its  Boundaries,  so  as  to  render  it  at  once  an  example  and  fit  instru- 
ment for  introducing  the  same  absolute  rule  into  these  Colonies. For 

taking  away  our  Charters,  abolishing  our  most  valuable  Laws,  and  altering 
fundamentally  the  Forms  of  our  Governments :  —  For  suspending  our  own 
Legislatures,  and  declaring  themselves  invested  with  power  to  legislate  for  us 
in  all  cases  whatsoever.  —  He  has  abdicated  Government  here,  by  declaring  us 

out  of  his  Protection  and  waging  War  against  us. He  has  plundered  our 

seas,  ravaged  our  Coasts,  burnt  our  towns,  and  destroyed  the  lives  of  our 
people. He  is  at  this  time  transporting  large  Armies  of  foreign  Mer- 
cenaries to  compleat  the  works  of  death,  desolation  and  tyranny,  already 
begun  with  circumstances  of  Cruelty  &  Perfidy  scarcely  paralleled  in  the  most 

barbarous  ages,  and  totally  unworthy  the  Head  of  a  civilized  nation. 

He  has  constrained  our  fellow  Citizens  taken  Captive  on  the  high  Seas  to  bear 
Arms  against  their  Country,  to  become  the  executioners  of  their  friends  and 

Brethren,  or  to  fall  themselves  by  their  Hands. He  has  excited  domestic 

insurrections  amongst  us,  and  has  endeavoured  to  bring  on  the  inhabitants  of 
our  frontiers,  the  merciless  Indian  Savages,  whose  known  rule  of  warfare,  is  an 
undistinguished  destruction  of  all  a^es,  sexes  and  conditions.  In  every  stage 
of  these  Oppressions  We  have  Petitioned  for  Redress  in  the  most  humble 
terms  :  Our  repeated  Petitions  have  been  answered  only  by  repeated  injury. 
A  Prince,  whose  character  is  thus  marked  by  every  act  which  may  define  a 
Tyrant,  is  unfit  to  be  the  ruler  of  a  free  people.  Nor  have  We  been  wanting 


552 


DECLARATIONS,  BILLS  OF  RIGHTS,  ETC. 


in  attentions  to  our  British  brethren.  "We  have  warned  them  from  time  to 
time  of  attempts  by  their  legislature  to  extend  an  unwarrantable  jurisdiction 
over  us.  We  have  reminded  them  of  the  circumstances  of  our  emigration  and 
settlement  here.  We  have  appealed  to  their  native  justice  and  magnanimity, 
and  we  have  conjured  them  by  the  ties  of  our  common  kindred  to  disavow 
these  usurpations,  which  would  inevitably  interrupt  our  connections  and 
correspondence.  They  too  have  been  deaf  to  the  voice  of  justice  and  of  con- 
sanguinity. We  must,  therefore,  acquiesce  in  the  necessity,  which  denounces 
our  Separation,  and  hold  them,  as  we  hold  the  rest  of  mankind,  Enemies  in 
War,  in  Peace  Friends. 

22ke,  therefore,  the  Representatives  of  the  unttrtJ  States  of  America,  in  General 
Congress  Assembled,  appealing  to  the  Supreme  Judge  of  the  world  for  the 
rectitude  of  our  intentions,  do,  in  the  Name,  and  by  Authority  of  the  good 
People  of  these  Colonies,  solemnly  publish  and  declare,  That  these  United 
Colonies  are,  and  of  Right  ought  to  oe  JFrce  anU  EnUepeuUent  States ;  that  they 
are  Absolved  from  all  Allegiance  to  the  British  Crown,  and  that  all  political 
connection  between  them  and  the  State  of  Great  Britain,  is  and  ought  to  be 
totally  dissolved ;  and  that  as  Free  and  Independent  States,  they  have  full 
Power  to  levy  War,  conclude  Peace,  contract  Alliances,  Establish  Commerce, 
and  to  do  all  other  Acts  and  Things  which  Independent  States  may  of  right  do. 
And  for  the  support  of  this  Declaration,  with  a  firm  reliance  on  the  Pro- 
tection of  divine  Providence,  we  mutually  pledge  to  each  other  our  Lives,  our 
Fortunes  and  our  sacred  Honor. 


RICHARD  HENRY  LEE. 
ABRA.  CLARK. 
JOHN  PENN. 
JOHN  ADAMS. 
ROBT.  TREAT  PATNK 
ELBRIDGE  GERRY. 
STEP.  HOPKINS. 
WILLIAM  ELLERY. 
ROGER  SHERMAN. 
SAML.  HUNTINGTON. 
WM.  WILLIAMS. 
OLIVER  WOLCOTT. 
MATTHEW  THORNTON. 
WM.  HOOPER. 
JOSEPH  HEWES. 
WM.  FLOYD. 
PHIL.  LIVINGSTON. 
FRANS.  LEWIS. 
LEWIS  MORRIS. 
JOHN  HART. 
TH.  JEFFERSON. 
BENJ.  HARRISON. 
THOS.  NELSON,  JR. 
FRANCIS  LIGHTFOOT  LEE. 
CARTER  BRAXTON. 
BUTTON  GWINNETT. 
LYMAN  HALL. 
THOS.  HAYWARD,  JUN. 


THOMAS  LYNCH,  JUN. 
ARTHUR  MIDDLKTON. 
JOHN  HANCOCK. 
EDWARD  RUTLEDGB. 
GEORGE  WYTHE. 
ROBT.  MORRIS. 
BENJAMIN  RUSH. 
BENJ.  FRANKLIN. 
JOHN  MORTON. 
GEO.  CLYMEE. 
JAS.  SMITH. 
GEO.  TAYLOR. 
JAMES  WILSON. 
GEO.  Ross. 
C^SAR  RODNEY. 
GEO.  READ. 
THO.  M'KEAN. 
GEO.  WALTON. 
WM.  WHIPPLE. 
SAML.  ADAMS. 
JOSIAH  BARTLETT. 
RICH.  STOCKTON. 

JNO.  WlTHERSPOON. 

FRAS.  HOPKINSON. 

SAMUEL  CHASE. 

WM.  PACA. 

THOS.  STONE. 

CHARLES  CARROLL  of  Carroll  ton. 


[L.  s.]  WASHINGTON,  D.  C.,  January  28th,  1874. 

I   certify  that   the   foregoing  copy  is  a  fac-simile  of  the   original  Declaration  of 
Independence  now  on  deposit  in  the  United  States  Patent  Office  at  Washington,  D  C. 

C.  DELANO,  Secretary  of  the  Interior. 


APPENDIX  E.    NO.  2.  553 

No.  2. 
BILLS   OF   RIGHTS   OR   INSTITUTES  OF   FREEDOM. 


they  keep  out  of  constitution*  and  above  government ;  and  which,  therefore,  no 
rn Iff  has  the  right  to  control  or  even  touch. 

Beside  the  Virginia  "  Bill  of  Rights,"  of  1776,— the  first  declared  in  Ameri- 
ca—  no\v  to  be  given,  and  the  preamble  and  declaration  of  rights  in  the 
constitution  of  Massachusetts,  which  follow  the  Virginia  one,  —  the  student 
should  read  the  English  "Magna  Charta"  ''Petition  of  Right/'  and  "Bill  of 
Rights,"  keeping  it  in  mind  that,  in  our  case,  these  are  DECLARATIONS  BY 
THE  PEOPLE  of  their  sovereign  rights  over,  and  governing,  their  rulers;  while 
the  English  declarations  are  THE  GRANTS  BY  KINGS  OF  PRIVILEGES  to  their 
subjects. 

VIRGINIA  BILL  OP  RIGHTS. 

When,  on  the  15th  of  May,  1776,  the  Convention  of  Virginia  instructed 
their  delegates  in  Congress  to  propose  to  that  body  to  declare  the  United 
Colonies  free  and  independent  States,  it,  at  the  same  time,  appointed  a  com- 
mittee to  prepare  a  declaration  of  rights  and  such  a  plan  of  government  as 
would  be  most  likely  to  maintain  peace  and  order  in  the  colony,  and  secure 
substantial  and  equal  liberty  to  the  people.  On  subsequent  days  the  com- 
mittee was  enlarged;  Mr.  George  Mason  was  added  to  it  on  the  18th.  The 
declaration  of  rights  was,  on  the  27th,  reported  by  Mr.  Archibald  Gary,  the 
chairman  of  the  committee,  and,  after  being  twice  read,  was  ordered  to  be 
printed  for  the  perusal  of  members.  It  was  considered  in  committee  of  the 
whole  on  the  29th  of  May,  and  the  3d,  4th,  5th,  and  10th  of  June.  It  was 
then  reported  to  the  house  with  amendments.  On  the  llth,  the  convention 
considered  the  amendments,  and  having  agreed  thereto,  ordered  that  the  de- 
claration [with  the  amendments]  be  fairly  transcribed  and  read  a  third  time. 
This  having  been  done  on  the  12th,  the  declaration  was  then  read  a  third  time 
and  passed  nem.  con.  A  manuscript  copy  of  the  first  draft  of  the  declaration, 
just  as  it  was  drawn  by  Mr.  Mason,1  is  in  the  library  of  Virginia.  The 
declaration  as  it  passed  is  as  follows  : 

A  Declaration  of  Rights  made  by  the  Representatives  of  the  good  people  of 
VIRGINIA,  assembled  in  full  and  free  Convention,  which  rights  do  pertain 
to  them  and  their  posterity  as  the  basis  and  foundation  of  government. 

1.  That  all  men  are  by  nature  equally  free  and  independent,  and  have  certain 
inherent  rights,  of  which,  when  they  enter  into  a  state  of  society,  they  cannot 
by  any  compact  deprive  or  divest  their  posterity ;  namely,  the  enjoyment  of 
life  and  liberty,  with  the  means  of  acquiring  and  possessing  property,  and 
pursuing  and  obtaining  happiness  and  safety. 

2.  That  all  power  is  vested  in,  and  consequently  derived  from,  the  people; 
that  magistrates  are  their  trustees  and  servants,  and  at  all  times  amenable 
to  them. 

3.  That  government  is,  or  ought  to  be,  instituted  for  the  common  benefit, 
protection,  and  security  of  the  people,  nation,  or  community;  of  all  the  various 
modes  and  forms  of  government,  that  is  best,  which  is  capable  of  producing 

1  Va.  Hist.  Reg.,  Jan.,  1849,  p.  29. 


554  DECLARATIONS,  BILLS   OF  RIGHTS,   ETC. 

the  greatest  degree  of  happiness  and  liberty,  and  is  most  effectually  secured 
against  the  danger  of  mal-ad ministration ;  and  that,  when  any  government 
shall  be  found  inadequate  or  contrary  to  these  purposes,  a  majority  of  the 
community  hath  an  indubitable,  inalienable,  and  indefeasable  right  to  reform, 
alter,  or  abolish  it,  in  such  manner  as  shall  be  judged  most  conducive  to  the 
public  weal. 

4.  That  no  man,  or  set  of  men,  are  entitled  to  exclusive  or  separate  emolu- 
ments or  privileges  from  the  community,  but  in  consideration  of  public  services; 
which  not  being  descendable,  neither  ought  the  offices  of  magistrate,  legislator, 
or  judge  to  be  hereditary. 

5.  That  the  legislative  and  executive  powers  of  the  state  should  be  separate 
and  distinct  from  the  judiciary ;  and  that  the  members  of  the  two  first  may  be 
restrained  from  oppression,  by  feeling  and  participating  the  burthens  of  the 
people,  they  should  at  fixed  periods  be  reduced  to  a  private  station,  return 
into  that  body  from  which  they  were  originally  taken,  and  the  vacancies  be 
supplied  by  frequent,  certain,  and  regular  elections,  in  which  all,  or  any  part 
of  the  former  members  to  be  again  eligible,  or  ineligible,  as  the  laws  shall 
direct. 

6.  That  election  of  members  to  serve  as  representatives  of  the  people,  in 
assembly,  ought  to  be  free ;  and  that  all  men,  having  sufficient  evidence  of 
permanent  common  interest  with,  and  attachment  to,  the  community,  have  the 
right  of  suffrage,  and  cannot  be  taxed  or  deprived  of  their  property  for  public 
uses,  without  their  own  consent,  or  that  of  their  representatives  so  elected, 
nor  bound  by  any  law  to  which  they  have  not,  in  like  manner,  assented,  for 
the  public  good. 

7.  That  all  power  of  suspending  laws,  or  the  execution  of  laws,  by  any 
authority,  without  consent  of  the  representatives  of  the  people,  is  injurious  to 
their  rights,  and  ought  not  to  be  exercised. 

8.  That,  in  all  capital  or  criminal  prosecutions,  a  man  hath  a  right  to 
demand  the  cause  and  nature  of  his  accusation,  to  be  confronted  with  the 
accusers  and  witnesses,  to  call  for  evidence  in  his  favor,  and  to  a  speedy  trial 
by  an  impartial  jury  of  his  vicinage,  without  whose  unanimous  consent  he 
cannot  be  found  guilty ;  nor  can  he  be  compelled  to  give  evidence  against  him- 
self;  that  no  man  can  be  deprived  of  his  liberty,  except  by  the  law  of  the  land, 
or  the  judgment  of  his  peers. 

9.  That  excessive  bail  ought  not  to  be  required,  nor  excessive  fines  imposed, 
nor  cruel  nor  unusual  punishments  inflicted. 

10.  That  general  warrants,  whereby  an  officer  or  messenger  may  be  com- 
manded to  search  suspected  places  without  evidence  of  a  fact  committed,  or  to 
seize  any  person  or  persons  not  named,  or  whose  offence  is  not  particularly 
described  and  supported  by  evidence,  are  grievous  and  oppressive,  and  ought 
not  to  be  granted. 

11.  That  in  controversies  respecting  property,  and  in  suits  between  man  and 
man,  the  ancient  trial  by  jury  is  preferable  to  any  other,  and  ought  to  be 
held  sacred. 

12.  That  the  freedom  of  the  press  is  one  of  the  greatest  bulwarks  of  liberty, 
and  can  never  be  restrained  but  by  despotic  governments. 

13.  That  a  well  regulated  militia,  composed  of  the  body  of  the  people, 
trained  to  arms,  is  the  proper,  natural,  and  safe  defence  of  a  free  state ;  that 
standing  armies,  in  time  of  peace,  should  be  avoided,  as  dangerous  to  liberty; 
and  that  in  all  cases  the  military  should  be  under  strict  subordination  to,  and 
governed  by,  the  civil  power. 

14.  That  the  people  have  a  right  to  uniform  government;  and  therefore, 
that  no  government  separate  from,  or  independent  of,  the  government  of  Vir- 

,  ought  to  be  erected  or  established  within  the  limits  thereof. 


APPENDIX  E.    NO.  2.  555 

15.  That  no  free  government,  or  the  blessing  of  liberty,  can  be  preserved 
to  any  people,  but  by  a  firm  adherence  to  justice,  moderation,  frugality  and 
virtue,  and  by  a  frequent  recurrence  to  fundamental  principles. 

16.  That  religion,  or  the  duty  which  we  owe  to  our  Creator,  and  the  manner 
of  discharging  it,  can  be  directed  only  by  reason  and  conviction,  not  by  force  or 
violence ;  and  therefore,  all  men  are  equally  entitled  to  the  free  exercise  of 
religion,  according  to  the  dictates  of  conscience ;  and  thai,  it  is  the  mutual 
duty  of  all  to  practise  Christian  forbearance,  love,  and  charity  towards  each 
other. 


MASSACHUSETTS  BILL  OF  RIGHTS. 
CONSTITUTION   OF  MASSACHUSETTS. 

A  constitution,  or  frame  of  government,  agreed  upon  by  the  delegates  of  the 
people  of  Massachusetts  Bay,  in  convention,  begun  and  held  at  Cambridge,  on 
the  first  of  September,  1779,  and  continued,  by  adjournment,  to  the  second  of 
March,  1780. 

PREAMBLE. 

The  end  of  the  institution,  maintenance,  and  administration  of  government, 
is  to  secure  the  existence  of  the  body  politic ;  to  protect  it,  and  to  furnish  the 
individuals  who  compose  it  with  the  power  of  enjoying,  in  safety  and  tran- 
quillity, their  natural  rights  and  the  blessings  of  life;  and,  whenever  these  great 
objects  are  not  obtained,  the  people  have  a  right  to  alter  the  government,  and 
to  take  measures  necessary  for  their  safety,  prosperity,  and  happiness. 

The  body  politic  is  formed  by  a  voluntary  association  of  individ- 
uals. It  is  a  social  compact,  by  which  the  whole  people  covenants 
with  each  citizen,  and  each  citizen  with  the  whole  people,  that  all 
shall  be  governed  by  certain  laws  for  the  common  good.  It  is  the  duty  of  the 
people,  therefore,  in  framing  a  constitution  of  government,  to  provide  for  an 
equitable  mode  of  making  laws,  as  well  as  for  an  impartial  interpretation  and 
a  faithful  execution  of  them  ;  that  every  man  may  at  all  times  find  his  security 
in  them. 

We,  therefore,  the  people  of  Massachusetts,  acknowledging,  with  grateful 
hearts,  the  goodness  of  the  Great  Legislator  of  the  Universe,  in  affording  us  in 
the  course  of  his  providence,  an  opportunity,  deliberately  and  peaceably,  with- 
out fraud,  violence,  or  surprise,  of  entering  into  an  original,  explicit,  and 
solemn  compact  with  each  other ;  and  of  forming  a  new  constitution  of 
civil  government,  for  ourselves  and  posterity ;  and  devoutly  imploring  his  direc- 
tion in  so  interesting  a  design  —  do  agree  upon,  ordain,  and  establish,  the  fol- 
lowing declaration  of  rights  and  frame  of  government,  as  the  constitution  of  the 
commonwealth  of  Massachusetts. 

PART  I. 
A  DECLARATION  OF  THE  RIGHTS 

of  the  Inhabitants  of  the  Commonwealth  of  Massachusetts. 

ARTICLE  1.  All  men  are  bora  free  and  equal,  and  have  certain  natural,  es- 
sential, unalienable  rights,  among  which  may  be  named  the  right  of  enjoying 
and  defending  their  lives  and  liberties  ;  that  of  acquiring,  possessing  and  pro- 
tecting property;  in  fine,  that  of  seeking  and  obtaining  their  safety  and  happi- 
ness. 


556  DECLARATIONS,   BILLS   OF  RIGHTS,  ETC. 

2.  It  is  the  right,  as  well  as  the  duty  of  all  men  in  society,  publicly  and  at 
stated  seasons,  to  worship  the  Supreme  Being,  the  Great  Creator  and  Pre- 
server of  the  Universe.     And  no  subject  shall  be  hurt,  molested,  or  restrained, 
in  his  person,  liberty,  or  estate,  for  worshipping  God  in  the  manner  and  seasons 
most  agreeable  to  the  dictates  of  his  own  conscience  ;  or  for  his  religious  pro- 
fession  or  sentiments  ;  provided  he  does  not  disturb  the  public  peace,  or  ob- 
struct others  in  their  religious  worship. 

3.  As  the  happiness  of  a  people,  and  the  good  order  and  preservation  of 
civil  government,  essentially  depend  upon  piety,  religion,  and  morality;  and  as 
these  cannot  generally  be  diffused  throughout  the  community,  but  by  the  insti- 
tution of  a  public  worship  of  God,  and  of  public  institutions  in  piety,  religion, 
and  morality ;  therefore  to  promote  their  happiness,  and  to  secure  the  good 
order  of  their  government,  the  people  of  this  commonwealth  have  a  right  to 
invest  their  legislature  with  power  to  authorize  and  require,  and  the  legislature 
shall,  from  time  to  time,  authorize  and  require  the  several  towns,  parishes,  and 
precincts,  and  other  bodies  politic,  or  religious  societies,  to  make  suitable  pro- 
vision at  their  own  expense,  for  the  institution  of  the  public  worship  of  God, 
and  for  the  support  and  maintenance  of  public  Protestant  teachers  of  piety, 
religion,  and  morality  in  all  cases,  where  such  provision  shall  not  be  made  vol- 
untarily. 

All  the  people  of  the  commonwealth  have  also  a  right  to,  and  do,  invest 
their  legislature  with  authority  to  enjoin  upon  all  the  subjects  an  attendance 
upon  the  public  teachers,  as  aforesaid,  at  stated  times  and  seasons,  if  there  be 
any  one  whose  instructions  they  can  conscientiously  and  conveniently  attend : 

Provided,  notwithstanding,  the  several  towns,  parishes,  precincts,  and  other 
bodies  politic  or  religious  societies,  shall  at  all  times  have  the  exclusive  right 
of  electing  their  public  teachers,  and  of  contracting  with  them  for  their  support 
and  maintenance. 

All  moneys  paid  by  the  subject  to  the  support  of  public  worship,  and  of  the 
public  teachers  aforesaid,  shall,  if  he  require  it,  be  uniformly  applied  to  the 
support  of  the  teacher  or  teachers  of  his  own  religious  sect  or  denomination, 
provided  there  be  any  on  whose  instructions  he  attends ;  otherwise  it  mav^  be 
paid  towards  the  support  of  the  teacher  or  teachers  of  the  parish  or  precinct 
in  which  the  said  moneys  are  raised. 

And  every  denomination  of  Christians  demeaning  themselves  peaceably,  and 
as  good  subjects  of  the  commonwealth,  shall  be  equally  under  the  protection 
of  the  law ;  and  no  subordination  of  any  sect  or  denomination  to  another  shall 
ever  be  established  by  law. 

4.  The  people  of  this  commonwealth  have  the  sole  and  exclusive 
right  of  governing  themselves,  as  a  free,  sovereign  and  independent 
state ;  and  do  and  for  ever  hereafter  shall  exercise  and  enjoy  every  power, 
jurisdiction  and  right  which  is  not,  or  may  not  hereafter  be,  by  them  expressly 
delegated  to  the  United  States  of  America  in  congress  assembled. 

5.  All  power  residing  originally  in  the  people,  and  being  derived 
from  them,  the  several  magistrates  and  officers  of  government  vested 
with  authority,  whether  legislative,  executive  or  judicial,  are  their  substi- 
tutes and  agents,  and  are  at  all  times  accountable  to  them. 

6.  No  man,  or  corporation,  or  association  of  men,  have  any  other  title  to 
obtain  advantages,  or  particular  and  exclusive  privileges,  distinct  from  those 
of  the  community,  than  what  arises  from  services  rendered  to  the  public.    And 
this  title  being  in  nature  neither  hereditary  nor  transmissible  to  children,  or 
descendants,  or  relations  of  blood,  the  idea  of  a  man  born  a  magistrate,  law- 
giver  or  judge  is  absurd  and  unnatural. 

7.  Government  is  instituted  for  the  common  good,  for  the  pro- 
tection, safety,  prosperity  and  happiness  of  the  people,  and  not  fur  the 


APPENDIX  E.    NO.  2.  557 

profit,  honor  or  private  interest  of  any  one  man,  family,  or  any  one  class  of 
men.  Therefore  the  people  alone  have  an  incontestable,  unalienable 
and  indefeasible  right  to  institute  government,  and  to  reform,  alter 
or  totally  change  the  same  when  their  protection,  safety,  prosperity  and 
happiness  require  it. 

8.  In  order  to  prevent  those  who  are  vested  with  authority  from  becoming 
oppressors,  the  people  have  a  right,  at  such  periods  and  in  such  manner  as  they 
shall  establish  by  the  frame  of  government,  to  cause  their  public  officers  to 
return  to  private  life,  and  to  fill  up  vacant  places  by  certain  and  regular  elec- 
tions and  appointments. 

9.  All  elections  ought  to  be  free,  and  all  the  inhabitants  of  this  common- 
wealth  having  such  qualifications  as  they  shall  establish   by  their  frame  of 
government,  have  an  equal  right  to  elect  officers  and  to  be  elected  for  public 
employments. 

10.  Each  individual  of  the  society  has  a  right  to  be  protected  by  it  in  the 
enjoyment  of  his  life,  liberty  and  property  according  to  the  standing  laws.     He 
is  obliged,  consequently,  to  contribute  his  share  to  the  expense  of  this  pro- 
tection, to  give  his  personal  services,  or  an  equivalent,  when  necessary.     But 
no  part  of  the  property  of  any  individual  can  with  justice  be  taken  from  him, 
or  applied  to  the  public  use,  without  his  own  consent  or  that  of  the  representa- 
tive body  of  the  people.     In  fine,  the  people  of  this  commonwealth  are  not 
controllable  by  any  other  laws  than  those  to  which  their  constitutional  repre- 
sentative body  have  given  their  consent.     And  whenever  the  public  exigencies 
require  that  the  property  of  any  individual  should  be  appropriated  to  public 
uses,  he  shall  receive  a  reasonable  compensation  therefor. 

11.  Every  subject  of  the  commonwealth  ought  to  find  a  certain  remedy,  by 
having  recourse  to  the  laws,  for  all  injuries  or  wrongs  which  he  may  receive 
in  his  person,  property  or  character.     He  ought  to  obtain  right  and  justice 
freely  and  without  being  obliged  to  purchase  it,  completely  and  without  any 
denial,  promptly  and  without  delay,  conformably  to  the  laws. 

12.  No  person  shall  be  held  to  answer  for  any  crime  or  offence  until  the 
same  is  fully  and  plainly,  substantially  and  formally  described  to  him  ;  or  be 
compelled  to  accuse  or  ftirnish  evidence  against  himself.     And  every  person 
shall  have  a  right  to  produce  all  proofs  that  may  be  favorable  to  him,  to  meet 
the  witnesses  against  him  face  to  face,  and  be  fully  heard  in  his  defence,  by 
himself  or  counsel,  at  his  election.    And  no  person  shall  be  arrested,  imprisoned, 
or  despoiled  or  deprived  of  his  property,  immunities,  or  privileges,  put  out  of 
the  protection  of  the  law,  exiled,  or  deprived  of  his  life,  liberty  or  estate  but  by 
the  judgment  of  his  peers  or  the  law  of  the  land. 

And  the  legislature  shall  not  make  any  law  that  shall  subject  any  person  to 
a  capital  or  infamous  punishment  (excepting  for  the  government  of  the  army 
and  navy)  without  trial  by  jury. 

13.  In  criminal  prosecutions  the  verification  of  facts,  in  the  vicinity  where 
they  happen,  is  one  of  the  greatest  securities  of  the  life,  liberty  and  property 
of  the  citizen. 

14.  Every  person  has  a  right  to  be  secure  from  all  unreasonable  searches  of 
his  person,  his  houses,  his  papers,  and  all  his  possessions.     All  warrants,  there- 
fore, are  contrary  to  this  right  if  the  cause  or  foundation  of  them  be  not  pre- 
viously supported  by  oath  or  affirmation :  and  if  the  order  in  a  warrant  to  a 
civil  officer  to  make  search  in  all  suspected  places,  or  to  arrest  one  or  more 
suspected  persons,  or  to  seize  their  property,  be  not  accompanied  with  a  specific 
designation  of  the  person  or  object  of  search,  arrest  or  seizure. 

And  no  warrant  ought  to  be  issued  but  in  such  cases  and  with  the  formalities 
prescribed  by  the  laws. 

15.  In  all  controversies  concerning  property,  and  in  all  suits  between  two  or 


558  DECLARATIONS,   BILLS  OF  RIGHTS,  ETC. 

more  persons  (except  in  cases  in  which  it  has  heretofore  been  otherwise  used 
and  practised),  the  parties  have  a  right  to  a  trial  by  jury ;  and  this  method  of 
procedure  shall  be  held  sacred,  unless  in  cases  arising  on  the  high  seas,  and 
such  as  relate  to  mariners'  wages,  the  legislature  shall  hereafter  find  it  neces- 
sary to  alter  it. 

16.  The  liberty  of  the  press  is  essential  to  the  security  of  freedom  in  a  state ; 
it  ought  not,  therefore,  to  be  restrained  in  this  commonwealth. 

17.  The  people  have  a  right  to  keep  and  bear  arms  for  their  common  defence. 
And  as  in  time  of  peace  armies  are  dangerous  to  liberty,  they  ought  not  to  be 
maintained  without  consent  of  the  legislature ;    and  the  military  power  shall 
always  be  held  in  exact  subordination  to  the  civil  authority,  and  be  governed 
by  it. 

18.  A  frequent  recurrence  to  the  fundamental  principles  of  the  constitution, 
and  a  constant  adherence  to  those  of  piety,  justice,  moderation,  temperance, 
industry  and  frugality,  are  absolutely  necessary  to  preserve  the  advantages  of 
liberty,  and  to  maintain  a  free  government.     The  people  ought,  consequently, 
to  have  a  particular  attention  to  all  those  principles  in  the  choice  of  their  offi- 
cers and  representatives ;    and  they  have  a  right  to  require  of  their  lawgivers 
and  magistrates  an  exact  and  constant  observance  of  them  in  the  formation  and 
execution  of  all  laws  necessary  for  the  good  administration  of  the  commonwealth. 

19.  The  people  have  a  right  in  an  orderly  and  peaceable  manner  to  assemble 
to  consult  on  the  common  good,  give  instructions  to  their  representatives,  and 
to  request  of  the  legislative  body,  by  the  way  of  addresses,  petitions  or  remon- 
strances, redress  of  the  wrongs  done  them  and  of  the  grievances  they  suffer. 

20.  The  power  of  suspending  the  laws,  or  the  execution  of  the  laws,  ought 
never  to  be  exercised  but  by  the  legislature,  or  by  authority  derived  from  it, 
to  be  exercised  in  such  particular  cases  only  as  the  legislature  shall  expressly 
provide  for. 

21.  The  freedom  of  deliberation,  speech  and  dabate  in  either  house  of  the 
legislature  is  so  essential  to  the  rights  of  the  people  that  it  cannot  be  the  foun- 
dation of  any  accusation  or  prosecution,  action  or  complaint  in  any  other  court 
or  place  whatever. 

22.  The  legislature  ought  frequently  to  assemble  for  the  redress  of  griev- 
ances, for  correcting,  strengthening  and  confirming  the  laws,  and  for  making 
new  laws,  as  the  common  good  may  require. 

23.  No  subsidy,  charge,  tax,  impost  or  duties  ought  to  be  established,  fixed, 
laid  or  levied  under  any  pretext  whatever,  without  the  consent  of  the  people  or 
their  representatives  in  the  legislature. 

24.  Laws  made  to  punish  for  actions  done  before  the  existence  of  such  laws, 
and  which  have  not  been  declared  crimes  by  preceding  laws,  are  unjust,  oppres- 
sive and  inconsistent  with  the  fundamental  principles  of  a  free  government. 

25.  No  person  ought  in  any  case  or  in  any  time  to  be  declared  guilty  of 
treason  or  felony  by  the  legislature. 

26.  No  magistrate  or  court  of  law  shall  demand  excessive  bail  or  sureties, 
impose  excessive  fines,  or  inflict  cruel  or  unusual  punishments. 

27.  In  time  of  peace  no  soldier  ought  to  be  quartered  in  any  house  without 
the  consent  of  the  owner ;  and  in  time  of  war  such  quarters  ought  not  to  be 
made  but  by  the  civil  magistrate  in  manner  ordained  by  the  legislature. 

28.  No  person  can  in  any  case  be  subjected  to  law  martial,  or  to  any  penal- 
ties or  pains  of  that  law  (except  those  employed  in  the  army  or  navy,  and 
except  the  militia  in  actual  service),  but  by  the  authority  of  the  legislature. 

29.  It  is  essential  to  the  preservation  of  the  rights  of  every  individual,  his 
life,  liberty,  property  and  character,  that  there  be  an  impartial  interpretation 
of  the  laws  and  administration  of  justice.     It  is  the  right  of  every  citizen  to 
be  tried  by  judges  as  free,  impartial  and  independent  as  the  lot  of  humanity 


APPENDIX  E.    NO.  2.  559 

will  admit.  It  is  therefore,  not  only  the  best  policy,  but  for  the  security  of 
the  rights  of  the  people  and  of  every  citizen,  that  the  judges  of  the  supreme 
judicial  courts  should  hold  their  offices  as  long  as  they  behave  themselves  well, 
and  that  they  should  have  honorable  salaries,  ascertained  and  established  by 
standing  laws. 

30.  In  the  government  of  this  commonwealth  the  legislative  department 
shall  never  exercise  the  executive  and  judicial  powers,  or  either  of  them  ;  the 
executive  shall  never  exercise  the  legislative  and  judicial  powers,  or  either  of 
them;  the  judicial  shall  never  exercise  the  legislative  and  executive  powers,  or 
either  of  them ;  to  the  end  that  it  may  be  a  government  of  laws,  and  not  of  men. 

PART  II. 
FRAME   OF  GOVERNMENT. 

The  people  inhabiting  the  territory  formerly  called  the  province  "of  Massa- 
chusetts Bay  do  hereby  solemnly  and  mutually  agree  with  each  other 
to  form  themselves  into  a  free,  sovereign  and  independent  body 
politic  or  state,  by  the  name  of  The  Commonwealth  of  Massachu- 
setts. 

[Here  follows  the  constitution  of  the  government.] 


THE  TENTH  AMENDMENT. 

There  was  much  clamor  against  the  federal  constitution  when  it  was  under 
discussion,  because  it  did  not  contain  a  bill  of  rights.  It  was  replied  that  all 
rights  and  powers  remained  in  the  people,  except  those  actually  expressed  in 
the  constitution ;  and  that  a  bill  of  rights  was  therefore  an  absurdity ;  and  be- 
sides, that  it  was  dangerous,  in  implying  that  all  rights  not  expressed  as  kept 
out,  might  in  future  be  assumed  to  be  in  the  constitution. 

But  the  clamor  went  on,  and  in  the  Massachusetts  convention,  to  escape 
defeat,  the  friends  proposed  to  recommend  an  amendment  declaring  what  every 
advocate  said  was  the  case  anyhow,  viz.  that  ALL  POWERS  NOT  DELEGATED 
ARE  RESERVED.  When  Gov.  Hancock  made  this  "  conciliatory  proposition," 
Samuel  Adams  turned  to  be  an  advocate,  saying  it  was  "equivalent  to  a  sum- 
mary of  a  bill  of  rights,"  and  meant  precisely  what  the  second  article  of  the 
first  federal  constitution  did,  viz.,  that  "each  state  retained  her  sove- 
reignty, and  every  power  and  right  not  expressly  delegated  to 
the  united  states  in  congress  assembled."  And  he  wrote  to  Gerry  and 
Lee  in  congress,  to  urge  the  adoption  of  the  said  amendment,  so  that  the 
people  should  see  clearly  "the  distinction  between  the  powers  delegated  to 
congress,  and  the  sovereign  authority  of  the  several  states,  which  is  the  pal- 
ladium of  the  rights  of  the  people." 

The  different  forms  in  which  the  states  proposed  the  prospective  tenth 
amendment  are  here  given,  because  the  perverters  say  it  means  that  the  nation 
reserved  to  the  states  such  powers  as  it  chose,  reserving  all  others  to  the  state 
governments  or  to  itself — the  people. 

This  idea  will  be  found  ridiculous  when  the  different  forms  as  proposed  by 
the  states  are  presented,  showing  what  they  meant  and  thought  they  were 
proposing. 

The  form  used  by  MASSACHUSETTS  was  as  follows  :  "All  powers  not  expressly 
delegated  by  the  aforesaid  constitution  are  reserved  by  the  several  states,  to 
be  by  them  exercised."  [II.  Ell.  Deb.  197.] 


560  DECLARATIONS,  BILLS  OF  RIGHTS,  ETC. 

SOUTH  CAROLINA'S  version :  "  The  states  retain  every  power  not  expressly 
relinquished  by  them,  and  vested  in  the  general  government  of  the  union. 
[I.  Ell.  Deb.  325.] 

T  Pirn 


expressly  delegated  by  this  constitution."     [II.  Ibid.  550.] 

NORTH  CAROLINA  expressed  it  thus :  "  That  each  state  in  the  union  shall 
respectively  retain  every  power,  jurisdiction,  and  right,  which  is  not  by  this 
constitution  delegated  to  the  congress  of  the  united  states,  or  to  the  de- 
partments of  the  general  government.  Nor  shall  the  said  congress,  nor  any 
department  of  the  said  government,  exercise  any  act  of  authority  over  any 
individual  in  any  of  the  said  states,  but  such  as  can  be  justified  under  some 
power  particularly  given  in  this  constitution ;  but  the  said  constitution  shall 
be  considered  at  all  times  a  solemn  instrument  defining  the  extent  of  their 
authority /and  defining  the  limits  which  they  cannot  rightfully  in  any  instance 
exceed."  [IV.  Ibid.  249;  Va.  Gaz.  Sept.  4,  1788.] 

NEW  HAMPSHIRE'S  expression  reads  thus:  "All  powers  not  expressly 
and  particularly  delegated  by  the  aforesaid  constitution,  are  reserved  by  the 
several  states  to  be  by  them  exercised."  [I.  Ell.  Deb.  326.] 

NEW  YORK'S  version  was  put  thus :  "  That  every  power,  jurisdiction,  and 
right,  which  is  not  by  the  said  constitution  clearly  delegated  to  the  congress  of 
the  united  states,  remains  to  the  people  of  the  several  states,  or  to  their  re- 
spective state  governments,  to  whom  they  may  have  granted  the  same." 
[I.  Ibid.  327.] 

RHODE  ISLAND  wanted  the  following  amendment :  "  The  united  states  shall 
guarantee  to  each  state  its  sovereignty,  freedom,  and  independence,  and  every 
power,  jurisdiction,  and  right,  which  is  not  by  this  constitution  expressly  dele- 
gated to  the  united  states." 


APPENDIX   F. 


WEBSTER'S  REAL  CONSTITUTIONAL  VIEWS. 

SEVEN  years  after  Webster  had  been  elected  to  Congress  from  New  Hamp- 
shire, and  when  he  was  in  the  full  maturity  of  ^ears  and  intellect,  he,  as  a  states- 
man, was  called  upon  by  one  of  the  most  enlightened  communities  of  America, 
for  his  best  considered  counsel  on  that  momentous  subject  —  then  agitating 
the  whole  country  —  the  admission  of  Missouri  into  the  union  of  states,  with 
or  without  conditions.  The  following  document  contains  his  most  deliberate 
views :  — 

The  italics  are  in  the  text  except  what  contains  the  following  points  of  Web- 
ster's doctrine :  — 

1.  That   "the  only  parties  to  the  constitution"  'contemplated  originally* 
were  "  the  13  confederated  states" 

2.  That  its  provisions  "  rest  on  compact  and  plighted  faith" 

3.  That  all  new  states  must  come  in  by  compact. 

4.  That  our  union  is  "  the  American  confederacy" 


A   MEMORIAL 

TO   THE 

CONGRESS    OF   THE    UNITED    STATES, 

ON   THE 

Subject  of  Restraining  the  Increase  of  Slavery  in  New  States, 

TO  BE   ADMITTED  INTO   THE  UNION. 


Prepared  in  pursuance  of  a  vote  of  the  inhabitants  of  Boston  and  its  vicinity,  assembled  at  the 
State  House,  on  the  third  day  of  December,  A.  D.,  1819. 


BOSTON: 

SEWELL  PHELPS,   PRINTER,   No.    5  COURT  STREET. 
1819. 


The  Committee  appointed  by  a  vote  of  the  meeting  holden  in  the  State  House,  on  the  3d 
instant,  to  prepare  a  memorial  to  Congress,  on  the  subject  of  the  prohibition  of  Slavery  in  the 
New  States,  submit  the  following : 

DANIEL  WEBSTER, 
GEORGE   BLAKE, 
JOSIAH  QUINCY. 
JAMES  T.    AUSTIN. 
BOSTON,  December  15,  1819.  JOHN  G ALLISON. 

36 


MEMORIAL. 


To  the  Senate  and  House  of  Representatives  of  the  United  States,  in  Congress  assembled : 

THE  undersigned,  inhabitants  of  Boston  and  its  vicinity,  beg  leave  most 
respectfully  and  humbly  to  represent ;  That  the  question  of  the  introduction  of 
Slavery  into  the  New  States,  to  be  formed  on  the  west  side  of  the  Mississippi 
River,  appears  to  them  to  be  a  question  of  the  last  importance  to  the  future 
welfare  of  the  United  States.  If  the  progress  of  this  great  evil  is  ever  to  be 
arrested,  it  seems  to  the  undersigned  that  this  is  the  time  to  arrest  it.  A  false 
step  taken  now  cannot  be  retraced ;  and  it  appears  to  us  that  the  happiness  of 
unborn  millions  rests  on  the  measures,  which  Congress  may,  on  this  occasion, 
adopt.  Considering  this  as  no  local  question,  nor  a  question  to  be  decided  by 
a  temporary  expediency,  but  as  involving  great  interests  of  the  whole  of  the 
United  States,  and  affecting  deeply  and  essentially  those  objects  of  common 
defence,  general  welfare,  and  the  perpetuation  of  the  blessings  of  liberty,  for 
which  the  Constitution  itself  was  formed,  we  have  presumed  in  this  way,  to 
offer  our  sentiments  and  express  our  wishes  to  the  National  Legislature.  And 
as  various  reasons  have  been  suggested,  against  prohibiting  Slavery  in  the  New 
States,  it  may  perhaps  be  permitted  to  us  to  state  our  reasons,  both  for  believ- 
ing that  Congress  possesses  the  Constitutional  power  to  make  such  prohibition 
a  condition,  on  the  admission  of  a  New  State  into  the  Union,  and  that  it  is  just 
and  proper  that  they  should  exercise  that  power. 

And,  in  the  first  place,  as  to  the  Constitutional  authority  of  Congress.  The 
Constitution  of  the  United  States  has  declared,  that  "  the  Congress  shall  have 
power  to  dispose  of  and  make  all  needful  rules  and  regulations  respecting  the 
Territory,  or  other  property  belonging  to  the  United  States ;  and  nothing  in 
this  Constitution  shall  be  so  construed  as  to  prejudice  the  claims  of  the  United 
States,  or  of  any  particular  State."  It  is  very  well  known  that  the  saving  in 
this  clause  of  the  claims  of  any  particular  State  was  designed  to  apply  to  claims 
by  the  then  existing  States  of  territory,  which  was  also  claimed  by  the  United 
States  as  their  own  property. 

It  has,  therefore,  no  bearing  on  the  present  question.  The  power,  then,  of 
Congress  over  its  own  territories  is,  by  the  very  terms  of  the  Constitution 
unlimited.  It  may  make  all  "  needful  rules  and  regulations ;  "  which  of  course 
include  all  such  regulations  as  its  own  views  of  policy  or  expediency  shall  from 
time  to  time  dictate.  If,  therefore,  in  its  judgment,  it  be  needful  for  the 
benefit  of  a  Territory  to  enact  a  prohibition  of  slavery,  it  would  seem  to  be  as 
much  within  its  power  of  legislation,  as  any  other  ordinary  act  of  local  policy. 
Its  sovereignty  being  complete  and  universal,  as  to  the  Territory,  it  may  exer- 
cise over  it  the  most  ample  jurisdiction  in  every  respect.  It  possesses  V  this 
view  all  the  authority  which  any  State  Legislature  possesses  over  its  own  Ter- 
ritory :  and  if  a  State  Legislature  may,  in  its  discretion,  abolish  or  prohibit 
Slavery  within  its  own  limits,  in  virtue  of  its  general  legislative  authority,  for 
the  same  reason  Congress  also  may  exercise  the  like  authority  over  its  own 
Territories.  And  that  a  State  Legislature,  unless  restrained  by  some  consti- 
tional  provision,  may  so  do,  is  unquestionable,  and  has  been  established  by 
general  practice. 

If  then,  Congress  possess  unlimited  powers  of  government  over  its  Territo- 
ries, it  may  certainly  from  time  to  time  vary,  control  and  modify  its  legislation 


APPENDIX  F.  563 

as  it  pleases.  The  Territories,  as  such,  can  have  no  rights  but  such  as  are 
conferred  by  Congress ;  and  it  is  morally  bound  to  adopt  such  measures  as  are 
best  calculated  to  promote  the  permanent  interests  and  security  of  these  Terri- 
tories, as  well  as  to  secure  the  future  well-being  of  the  Union.  Without  an 
enabling  act  of  Congress,  no  Territory  or  portion  of  Territory  belonging  to 
the  United  States  can  be  created  into  a  State,  or  form  a  constitution  of  gov- 
ernment, or  become  discharged  of  its  Territorial  obedience ;  and  if  Congress 
may  grant  to  any  of  its  Territories  this  privilege,  it  may  also  most  clearly,  as 
it  seems  to  us,  in  its  discretion,  refuse  it. 

It  is  not  obliged  to  admit  it  to  become  a  State,  if  it  be  not  satisfied  that  such 
admission  will  conduce  as  well  to  its  own  good  as  to  the  good  of  the  Union.  In 
this  respect  Congress  stands,  in  relation  to  its  Territories,  like  a  State  in  rela- 
tion to  any  portion  of  its  own  Territory,  which  requests  to  be  separated  and 
formed  into  a  New  State.  No  person  has  ever  doubted  that  the  question  as 
to  such  separation  was  a  question  of  expediency,  resting  in  the  sound  discre- 
tion of  the  State ;  and  that  it  may  not  be  claimed  as  matter  of  right,  unless  in 
virtue  of  some  compact,  establishing  such  right.  No  person  has  ever 
doubted  that  any  State,  in  acceding  to  a  division  of  its  Territory, 
and  the  formation  of  a  New  State,  has  always  possessed  the  right 
to  impose  its  own  terms  and  conditions  as  a  part  of  the  grant. 
The  ground  of  this  right  is  the  exclusive  possession  of  sove- 
reignty, with  which  the  State  is  not  compellable  to  part,  and  if 
it  does  part  with  it,  it  may  annex  all  such  conditions  and  rules  as  it  deems  fit 
for  its  own  security  and  for  the  permanent  good  of  the  citizens  of  the  divided 
Territory.  Such  was  the  case  of  Virginia,  when  she  acceded  to  the  separation 
of  the  District  of  Kentucky  and  allowed  it  to  become  an  independent  State. 
Such  is  the  case  of  the  recent  separation  of  the  District  of  Maine  from  Mas- 
sachusetts. In  each  of  these  cases  a  considerable  number  of  fundamental 
conditions  were  offered  to  the  Districts  as  the  sole  grounds,  upon  which  the 
separation  could  be  allowed ;  and  not  a  doubt  was  ever  entertained,  that  these 
conditions  were  within  the  legitimate  exercise  and  authority  of  these  States. 
These  conditions  were  accepted  by  Kentucky,  and  have  been  accepted  by 
Maine,  and  it  was  never  imagined,  that  they  in  any  respect  prevented  either 
from  possessing  all  the  proper  attributes  of  State  sovereignty.  They  have 
never  been  viewed  in  any  other  light  than  as  just  restrictions,  not  upon  essen- 
tial State  rights,  but  upon  an  unlimited  exercise  of  sovereignty,  which  may  be 
injurious  to  rights  already  vested  in  the  parent  State,  or  its  citizens.  And  if 
Virginia  and  Massachusetts  may,  by  virtue  of  their  sovereign  rights,  impose 
conditions  upon  their  grants  of  their  own  Territorial  jurisdiction,  for  the  same 
reason,  it  would  seem,  that  the  United  States  may  impose  any  like  conditions, 
according  to  their  own  sound  discretion.  And  a  construction  of  this  clause  of 
the  constitution  of  the  United  States,  which  should  inhibit  Congress  from 
annexing  conditions  to  the  act  enabling  any  Territory  to  form  a  State  govern- 
ment, because  it  would  impair  the  sovereignty  of  the  State  so  formed,  would 
equally  aifect  the  like  conditions  annexed  by  a  State  to  a  like  act  in  favour  of  a 
portion  of  its  own  Territory.  A  construction,  which  would  lead  to  such  con- 
sequences, cannot  be  a  sound  one.  It  would  lead  to  the  most  injurious  results, 
and  absolve  all  the  New  States,  which  have  been  admitted  into  the  Union  since 
the  year  1791,  from  conditions,  which  have  been  hitherto  held  to  be  inviolably 
binding  upon  them.  It  would  be  also  repugnant  to  the  comprehensive  language 
of  this  clause  of  the  constitution,  and  to  the  uniform  practice,  which  has  pre- 
vailed under  it  from  the  earliest  period  of  the  formation  of  New  States  to  the 
present  time.  No  State  has  ever  admitted  a  New  State  to  be  formed  in  its 
own  bosom,  without  annexing  conditions,  and  no  act  has  passed  Congress 
enabling  any  of  its  Territories  to  become  States,  which  has  not,  in  like  man- 


564  WEBSTER'S  REAL  CONSTITUTIONAL  VIEWS. 

ner,  annexed  important  fundamental  conditions  to  the  act.  And  if  conditions 
may  be  annexed,  it  depends  solely  upon  the  wisdom  of  Congress  what  such 
conditions  shall  be.  They  may  embrace  everything  not  incompatible  with  the 
possession  of  those  federal  rights,  which  an  admission  into  the  Union  confers 
upon  the  New  State.  As  to  such  rights,  they  must,  by  the  nature  of  the 
case,  be  an  implied  exception.  The  remarks  that  have  hitherto  been  made, 
have  proceeded  upon  the  supposition  that  Congress  are  not  morally  bound, 
either  by  the  Treaty  of  Cession  or  by  any  compact  with  the  inhabitants, 
to  pass  an  act  for  the  erection  of  the  New  State,  without  imposing  con- 
ditions. 

These  observations,  so  far,  have  been  confined  to  the  Constitutional  authority 
of  Congress  flowing  directly  from  the  clause  which  has  been  mentioned.  Here 
then  is  the  case  of  an  express  power  given  in  plain  terms ;  and  by  another 
clause  of  the  Constitution,  Congress  have  express  authority  "  to  make  all  laws 
necessary  and  proper  for  carrying  that  power  into  execution."  But  other 
clauses  may  well  be  called  in  aid  of  this  construction,  applicable  to  all  cases 
whatsoever,  in  which  a  New  State  seeks  to  be  admitted  into  the  Union.  The 
Constitution  provides  that  "New  States  may  be  admitted  into 
the  Union."  The  only  parties  to  the  Constitution,  contemplated 
by  it  originally,  were  the  thirteen  confederated  States.  It  was  per- 
ceived that  the  Territory,  already  included  within  these  States,  might  be 
beneficially  divided  and  organized  under  separate  governments,  and  that  the 
Territories  already  belonging  to  the  United  States  might,  and  in  good  faith 
ought,  to  participate  in  the  privileges  of  the  federal  Union.  It  was  therefore 
wisely  provided  that  Congress,  in  which  all  the  Old  States  were  represented, 
should  nave  authority  to  admit  New  States  into  the  Union,  whenever  in  its 
judgment  such  an  act  would  be  beneficial  to  the  public  interests.  But  it  was 
at  the  same  time  provided  that  no  New  State  should  be  formed  or  erected 
within  the  jurisdiction  of  any  other  State,  etc.,  without  the  consent  of  the 
Legislatures  of  the  States  concerned,  as  well  as  of  the  Congress.  It  is  observ- 
able, that  the  language  of  the  Constitution  is,  that  New  States  may  (not  shall) 
be  admitted  into  the  Union.  It  is  therefore  a  privilege  which  Congress  maj 
withhold  or  grant,  according  to  its  discretion.  If  it  may  give  its  consent ;  it 
may  also  refuse  it,  and  no  New  State  can  have  a  right  to  compel  Congress  to 
do  that,  which  in  its  judgment  is  not  fit  to  be  done.  If  Congress  have  authority 
to  withhold  its  consent,  it  has  also  authority  to  give  that  consent  either  abso- 
lutely, or  upon  condition;  for  there  is  nothing  in  the  Constitution  which 
restricts  the  manner  or  the  terms  of  that  consent.  It  is  observable,  too,  that 
where  a  New  State  is  to  be  erected  within  the  limits  of  an  Old  State,  the  con- 
sent of  the  State  Legislature  is  as  necessary  as  that  of  Congress.  Now  it  will 
not,  we  suppose,  be  contended,  that  the  State  Legislature  may  not  grant  its 
consent  upon  conditions ;  and  if  so,  Congress  must  have  the  same  right  also, 
for  the  consent  of  the  State  Legislatures  and  of  Congress  is  required  by  the 
same  clause,  and  the  construction  which  fixes  the  meaning  of  "  consent "  as  to 
the  one,  must,  in  order  to  maintain  consistency,  fix  it  as  to  the  other.  And 
here  it  might  be  again  asked,  if  the  conditions  of  Virginia,  annexed  to  her  con- 
sent that  Kentucky  should  become  a  State,  were  not  binding  upon  the  latter, 
and  upon  Congress.  It  appears  to  the  memorialists  perfectly  clear,  that  since 
Congress  has  a  discretionary  authority  as  to  the  admission  of  New  States  into 
the  Union,  it  may  impose  whatever  conditions  it  pleases  as  terms  of  that  con- 
sent ;  and  this  clause,  alone,  which  applies  as  well  to  New  States  formed  from 
Old  States,  as  to  those  formed  from  the  territories  of  the  Union,  completely 
establishes  the  rights,  for  which  the  memorialists  contend. 

The  creation  of  a  New  State  is,  in  effect,  a  compact  between  Congress  and 
the  inhabitants  of  the  proposed  State.  Congress  would  not  probably  claim  the 


APPENDIX  F.  565 

power  of  compelling  the  inhabitants  of  Missouri  to  form  a  constitution  of  their 
own,  and  come  into  the  Union  as  a  State.  It  is  as  plain,  that  the  inhabitants 
of  that  Territory  have  no  right  of  admission  into  the  Union,  as  a  State,  without 
the  consent  of  Congress.  Neither  party  is  bound  to  form  this  connection.  It 
can  be  formed  only  by  the  consent  of  both.  What,  then,  prevents  Congress, 
as  one  of  the  stipulating  parties,  to  propose  its  terms  ?  and  if  the  other  party 
assents  to  these  terms,  why  do  they  not  effectually  bind  both  parties  ?  Or  if 
the  inhabitants  of  the  Territory  do  not  choose  to  accept  the  proposed  terms, 
but  prefer  to  remain  under  a  Territorial  government,  has  Congress  deprived 
them  of  any  right,  or  subjected  them  to  any  restraint,  which,  in  its  discretion, 
it  had  not  authority  to  do  ?  If  the  admission  of  New  States  be  not  the  discre- 
tionary exercise  of  a  constitutional  power,  but,  in  all  cases,  an  imperative  duty, 
how  is  it  to  be  performed  ?  If  the  Constitution  means  that  Congress  shall 
admit  New  States,  does  it  mean  that  Congress  shall  do  this  on  every  applica- 
tion, and  under  all  circumstances  ?  Or  if  this  construction  cannot  be  admitted, 
and  if  it  must  be  conceded  that  Congress  must,  in  some  respects,  exercise  its 
discretion,  on  the  admission  of  New  States,  how  is  it  to  be  shown,  that  that 
discretion  may  not  be  exercised,  in  regard  to  this  subject,  as  well  as  in  regard 
to  others  ? 

The  Constitution  declares,  "  that  the  migration  or  importation  of  such  per- 
sons as  any  of  the  States,  now  existing,  shall  think  proper  to  admit,  shall  not 
be  prohibited  by  the  Congress,  prior  to  the  year  1808."  It  is  most  manifest 
that  the  Constitution  does  contemplate,  in  the  very  terms  of  this  clause,  that 
Congress  possess  the  authority  to  permit  the  migration  or  importation  of 
Slaves ;  for  it  limits  the  exercise  of  this  authority  for  a  specific  period  of  time, 
leaving  it  to  its  full  operation  ever  afterwards.  And  this  power  seems  neces- 
sarily included  in  the  authority  which  belongs  to  Congress,  "to  regulate  com- 
merce with  foreign  nations  and  among  the  several  States"  No  person  has 
ever  doubted  that  the  prohibition  of  the  foreign  Slave  Trade  was  completely 
within  the  authority  of  Congress,  since  the  year  1808.  And  why  ?  Certainlv, 
only  because  it  is  embraced  in  the  regulation  of  foreign  commerce  ;  and  if  so,  it 
may  for  t  he  like  reason  be  prohibited,  since  that  period,  between  the  States. 
Commerce  in  Slaves,  since  the  year  1808,  being  as  much  subject  to  the  regula- 
tion of  Congress  as  any  other  commerce,  if  it  should  see  fit  to  enact  that  no 
Slave  should  ever  be  sold  from  one  State  to  another,  it  is  not  perceived  how 
its  Constitutional  right  to  make  such  provision  could  be  questioned.  It  would 
seem  to  be  too  plain  to  be  questioned,  that  Congress  did  possess  the  power, 
before  the  year  1808,  to  prohibit  the  migration  or  importation  of  Slaves  into  its 
Territories,  (and  in  point  of  fact  it  exercised  that  power)  as  well  as  into  any 
New  States ;  and  that  its  authority  after  that  year,  might  be  as  fully  exercised 
to  prevent  the  migration  or  importation  of  Slaves  into  any  of  the  Old  States. 
And  if  it  may  prohibit  New  States  from  importing  Slaves,  it  may  surely,  as  we 
humbly  submit,  make  it  a  condition  of  the  admission  of  such  States  into  the 
Union,  that  they  shall  never  import  them.  In  relation,  too,  to  its  own  Territories, 
Congress  possess  a  more  extensive  authority  and  may,  in  various  other  ways, 
effect  the  same  object.  It  might  for  example  make  it  an  express  condition  of 
its  grants  of  the  soil,  that  the  owners  shall  never  hold  Slaves ;  and  thus  pre- 
vent the  possession  of  Slaves  from  ever  being  connected  with  the  ownership  of 
the  soil. 

As  corroborative  of  the  views,  which  have  been  already  suggested,  the 
memorialists  would  respectfully  call  the  attention  of  Congress  to  the  history  of 
the  national  legislation,  under  the  Confederation  as  well  as  under  the  present 
Constitution,  on  this  interesting  subject.  Unless  the  memorialists  greatly  mis- 
take, it  will  demonstrate  the  sense  of  the  nation  at  every  period  of  its  legislation 
to  have  been,  that  the  prohibition  of  Slavery  was  no  infringement  of  any  just 


566  WEBSTER'S  REAL  CONSTITUTIONAL  VIEWS. 

rights  belonging  to  free  States,  and  was  not  incompatible  with  the  enjoyment  of 
all  the  rights  and  immunities,  which  an  admission  into  the  Union  was  supposed 
to  confer. 

It  will  be  recollected  that  Congress,  by  a  Resolve  of  the  10th  of  October, 
1780,  declared  that  the  unappropriated  lands  that  might  be  ceded  to  the  United 
States,  pursuant  to  a  previous  recommendation  of  Congress,  should  be  disposed 
of  for  the  common  benefit  of  the  United  States,  and  be  settled  and  formed  into 
distinct  republican  States,  which  should  become  members  of  the  federal  Union 
and  have  the  same  rights  of  sovereignty,  freedom  and  independence,  as  the 
other  States.     This  language  is  exceedingly  strong,  and  guarantees  to  the  New 
States  the  same  rights  of  sovereignty  as  the  Old  States  possessed.     It  was 
undoubtedly  with  this  Resolve  in  view,  that  the  Territory  northwest  of  the 
Ohio  was  ultimately  ceded  to  the  United  States  by  the  several  States  claiming 
title  to   it ;   viz :   by  Massachusetts,  Connecticut,  New   York   and   Virginia. 
New  York  made  a  cession  on  the  first  of  March,  1781,  without  annexing  any 
conditions ;  Virginia,  on  the  first  of  March,  1784,  upon  certain  conditions ; 
and,  among  others,  a  condition  embracing  the  substance  of  the  Resolve  of  the 
10th  October,  1780.      Massachusetts  made  a  cession  on  the  19th  of  April, 
1785,  stating  no  conditions,  but  expressly  to  the  uses  stated  in  the  Resolve  of 
1780.     And  lastly  Connecticut  made  a  cession  on  the  13th  of  September,  1786, 
without  any  condition,  but  expressly  for  the  common  use  and  benefit  of  the 
United  States.     On  the  13th  of  July,  1787,  Congress  passed  an  Ordinance  for 
the  government  of  the  Territory  so  added,  which  has  ever  since  continued  in 
force,  and  has  formed  the  basis  of  the  Territorial  governments  of  the  United 
States.     This  Ordinance  was  passed  by  the  unanimous  voice  of  all  the  States 
present  at  its  passage ;  viz :  Massachusetts,  New  York,  Pennsylvania,  Dela- 
ware, Virginia,  North  Carolina,  South  Carolina,  and  Georgia.     It  contains  six 
fundamental  articles  as  a  compact  between  the  United  States  and  the  inhab- 
itants, who  might  occupy  that  Territory,  which  are  introduced  by  a  preamble, 
declaring  them  to  be  "  for  extending  the  fundamental  principles  of  civil  and 
religious  liberty,  which  forms  the  basis  whereon  these  republics,  their  laws  and 
constitutions,  are  created ;  to  fix  and  establish  these  principles  as  the  basis  of 
all  laws,  constitutions  and  governments,  which  forever   hereafter  shall  be 
formed  in  said  Territory;  to  provide  also  for  the  establishment  of  States  and  a 
government  therein,  and  for  their  admission  into  a  share  in  the  federal  coun- 
cils, on  an  equal  footing  with  the  original  States,  at  as  early  a  period  as  might 
be  consistent  with  the  general  interest."    The  6th  article  declares,  that  "there 
shall  neither  be  Slavery  nor  involuntary  servitude  in  the  said  Territory,  other- 
wise than  for  the  punishment  of  crimes,  whereof  the  party  shall  become  con- 
victed."    It  is  observable,  that  no  objection  occurred  to  this  article,  on  the 
ground  that  it  was  incompatible  with  the  equal  sovereignty,  freedom  and  inde- 
pendence with  the  original  States,  to  which  the  New  States,  to  be  formed  in 
the  ceded  Territory,  were  entitled  by  the  Resolve  of  the  10th  of  October,  1780, 
and  by  the  express  reference  to  that  Resolve,  in  the  conditions  of  some  of  the 
cessions.     It  is  observable,  also,  that  by  the  preamble  already  recited,  to  which 
all  the  States  present  acceded,  and  among  these  were  three  of  the  ceding 
States,  and  a  majority  of  the  Slave-holding  States,  it  was  expressly  admitted, 
that  the  restrictions  of  the  6th  article  would  not  deprive  the  New  States,  upon 
their  admission  into  the  federal  councils,  of  their  equal  footing  with  the  original 
States.     This  is  a  high,  legislative  construction,  by  independent  States,  acting 
in  their  sovereignty  capacity,  and  entitled  to  the  greater  weight,  because  it  was 
a  subject  of  common  interest ;  and  to  all  it  could  not  but  be  deemed  a  prece- 
dent, which  would  justly  influence  the  subsequent  measures  of  the  general 
government.     Since  the  adoption  of  the  Constitution,  three  New  States,  form- 
ing a  part  of  this  Territory,  viz :  Ohio,  Indiana,  and  Illinois  have  been  admit- 


APPENDIX  F.  567 

ted  into  the  Union.  In  the  acts  enabling  them  to  form  State  governments, 
and  a  State  Constitution,  Congress  has,  among  other  very  important  condi- 
tions, made  it  a  fundamental  condition,  that  their  constitutions  shall  contain 
nothing  repugnant  to  the  Ordinance  of  1787.  These  conditions  were  acceded 
to  by  these  States,  and  have  ever  been  deemed  obligatory  upon  them  and  in- 
violable ;  and  these  States,  notwithstanding  these  conditions,  are  universally 
considered  as  admitted  into  the  Union  upon  the  same  footing  as  the  original 
States,  and  as  possessing,  in  respect  to  the  Union  the  same  rights  of  sove- 
reignty, freedom  and  independence  as  the  other  States,  in  the  sense,  in  which 
those  terms  are  used  in  the  Resolve  of  1780.  During  a  period  of  thirty  years, 
not  a  doubt  has  been  suggested,  that  the  provisions  of  this  ordinance  were  per- 
fectly compatible  with  the  implied  and  express  conditions  of  the  cessions  of 
this  Territory;  and  that  Congress  might  justly  impose  the  conditions,  which  it 
contains,  upon  all  the  States  formed  within  its  limits. 

In  the  year  1791,  Vermont  was  admitted  into  the  Union,  without  any  con- 
ditions being  annexed  respecting  Slavery.  The  reason  was  obvious.  It  had 
already  formed  a  constitution,  which  excluded  Slavery;  and  it  may  be  also 
asserted,  that,  looking  to  its  habits  and  feelings  of  its  population,  and  the 
habits  and  feelings,  and  constitutional  provisions  of  neighboring  States,  it  was 
morally  impossible  that  Slavery  could  be  adopted  in  that  State. 

Kentucky  was  admitted  into  the  Union  in  June,  1792.  The  State  was 
formed  from  the  State  of  Virginia,  and  the  latter  in  granting  its  consent,  im- 
posed certain  conditions,  which  have  since  been  supposed  to  form  a  funda- 
mental compact,  which  neither  is  at  liberty  to  violate.  Congress  did  not 
impose  any  restrictions  as  to  Slavery  on  its  admission,  and  for  reasons  which 
cannot  escape  the  most  careless  observer.  It  would  have  been  manifestly 
unjust,  as  well  as  impolitic. 

Tennessee  was  admitted  into  the  Union  in  June,  1796.  It  was  ceded  by 
North  Carolina,  more  than  six  years  before,  as  a  Territory,  upon  certain  con- 
ditions, and  among  them,  that  Congress  should  assume  the  government  of  the 
Territory,  and  govern  it  according  to  the  Ordinance  of  1787;  with  a  proviso, 
however,  "  that  no  regulation  made  or  to  be  made  by  Congress  shall  tend  to 
emancipate  Slaves."  In  good  faith,  therefore.  Congress  could  not  justly  insist 
upon  a  prohibition  of  Slavery  upon  its  admission  into  the  Union. 

Mississippi  was  admitted  into  the  Union  in  December,  1817,  upon  condi- 
tions that  its  constitution  should  contain  nothing  repugnant  to  the  Ordinance 
of  1787,  so  far  as  the  same  had  been  extended  to  the  Territory  by  the  agree- 
ment of  cession  made  between  the  United  States  and  Georgia;  and  Alabama 
was  authorized  to  become  a  State  by  the  act  of  2nd  of  March,  1819,  upon  a 
similar  condition.  Both  of  these  States  were  ceded  as  one  Territory  to  the 
United  States  by  Georgia,  in  April,  1802,  upon  condition,  among  other  things, 
that  it  should  be  admitted  into  the  Union  in  the  same  manner  as  the  Territory 
northwest  of  the  Ohio  might  be  under  the  Ordinance  of  1787,  "  which  Ordi- 
nance (it  is  declared)  shall  extend  to  the  Territory  contained  in  the  present 
act  of  cession,  that  article  only  excepted,  which  forbids  Slavery."  The  prohibi- 
tion of  Slavery  could  not,  therefore,  without  the  grossest  breach  of  faith,  be 
applied  to  this  Territory.  And  the  very  circumstances  of  this  exception  in 
this  cession  of  Georgia,  as  well  as  in  that  of  North  Carolina,  shows  strongly 
the  sense  of  those  States  that,  without  such  an  exception,  Congress  would 
possess  the  authority  in  question. 

The  memorialists,  after  this  general  survey,  would  respectfully  ask  the  atten- 
tion of  Congress  to  the  state  of  the  question  of  the  right  of  Congress  to  pro- 
hibit Slavery  in  that  part  of  the  former  Territory  of  Louisiana,  which  now 
forms  the  Missouri  Territory.  Louisiana  was  purchased  of  France  by  the 
Treaty  of  the  30th  of  April,  1803.  The  third  article  of  that  Treaty  is  as  fol- 


568  WEBSTER'S   REAL  CONSTITUTIONAL  VIEWS. 

lows:  "The  inhabitants  of  the  ceded  Territory  shall  be  incorporated  into  the 
Union  of  the  United  States,  and  admitted  as  soon  as  possible,  according  to  the 
principles  of  the  federal  Constitution,  to  the  enjoyment  of  all  the  right*,  advan- 
tages and  immunities  of  citizens  of  the  United  States;  and  in  the  meantime 
they  shall  be  maintained  and  protected  in  the  free  enjoyment  of  their  liberty, 
property,  and  the  religion,  which  they  profess. 

Although  the  language  of  this  article  is  not  very  precise  or  accurate,  the 
memorialists  conceive  that  its  real  import  and  intent  cannot  be  mistaken.  The 
first  clause  provides  for  the  admission  of  the  ceded  Territory  into  the  Union, 
and  the  succeeding  clause  shows  this  must  be  according  to  the  principles  of 
the  federal  Constitution  ;  and  this  very  qualification  necessarily  excludes  the 
idea  that  Congress  were  not  to  be  at  liberty  to  impose  any  conditions  upon  such 
admission,  which  were  consistent  with  the  principles  of  that  Constitution,  and 
which  had  been  or  might  justly  be  applied  to  other  New  States.  The  language 
is  not  by  any  means  so  pointed  as  that  of  the  Resolve  of  1780,  and  yet  it  has 
been  seen  that  that  Resolve  was  never  supposed  to  inhibit  the  authority  of 
Congress,  as  to  the  introduction  of  slavery,  and  it  is  clear,  upon  the  plainest 
rules  of  construction,  that  in  the  absence  of  all  restrictive  language,  a  clause, 
merely  providing  for  the  admission  of  a  Territory  into  the  Union,  must  be 
construed  to  authorize  an  admission  in  the  manner,  and  upon  the  terms,  which 
the  Constitution  itself  would  justify.  This  construction  derives  additional  sup- 
port from  the  next  clause.  The  inhabitants  "  shall  be  admitted  as  soon  as 
possible,  according  to  the  principles  of  the  federal  Constitution,  to  the  enjoy- 
ment of  all  the  rights,  advantages  and  immunities  of  citizens  of  the  United 
States."  The  rights,  advantages  and  immunities  here  spoken  of  must,  from  the 
very  force  of  the  terms  of  the  clause,  be  such  as  are  recognized  or  communi- 
cated by  the  Constitution  of  the  United  States ;  such  as  are  common  to  all 
citizens,  and  are  uniform  throughout  the  United  States.  The  clause  cannot  be 
referred  to  rights,  advantages  and  immunities,  derived  exclusively  from  the 
State  governments,  for  these  do  not  depend  upon  the  federal  Constitution. 
Besides,  it  would  be  impossible  that  all  the  rights,  advantages  and  immunities 
of  citizens  of  the  different  States  could  be  at  the  same  time  enjoyed  by  the  same 
persons.  These  rights  are  different  in  different  States ;  a  right  exists  in  one 
State,  which  is  denied  in  others,  or  is  repugnant  to  other  rights  enjoyed  in 
others.  In  some  of  the  States,  a  freeholder  alone  is  entitled  to  vote  in  elec- 
tions ;  in  some,  a  qualification  of  personal  property  is  sufficient ;  and  in  others 
age,  and  freedom  are  the  sole  qualifications  of  electors.  In  some  States  no 
citizen  is  permitted  to  hold  Slaves ;  in  others,  he  possesses  that  power  abso- 
lutely ;  in  others  it  is  limited.  The  obvious  meaning  therefore  of  the  clause  is, 
that  the  rights  derived  under  the  federal  Constitution,  shall  be  enjoyed  by  the 
inhabitants  of  Louisiana,  in  the  same  manner  as  by  the  citizen  of  other  States. 
The  United  States,  by  the  Constitution,  are  bound  to  guarantee  to  every  State 
in  the  Union  a  republican  form  of  government ;  and  the  inhabitants  of  Louisiana 
are  entitled,  when  a  State,  to  this  guarantee.  Each  State  has  a  right  to  two 
senators,  and  to  representatives  according  to  a  certain  enumeration  of  popula- 
tion pointed  out  in  the  Constitution.  The  inhabitants  of  Louisiana,  upon  their 
admission  into  the  Union,  are  also  entitled  to  these  privileges.  The  Constitu- 
tion further  declares,  "that  the  citizens  of  each  State  shall  be  entitled  to 
all  privileges  and  immunities  of  citizens  in  the  several  States."  It  would 
seem  as  if  the  meaning  of  this  clause  could  not  be  misinterpreted.  It  obviously 
applies  to  the  case  of  the  removal  of  a  citizen  of  one  State  to  another  State ; 
and  in  such  a  case  it  secures  to  the  migrating  citizen  all  the  privileges  and 
immunities  of  citizens  in  the  State  to  which  he  removes.  It  cannot  surely  be 
contended,  upon  any  rational  interpretation,  that  it  gives  to  the  citizens  of 
each  State  all  the  privileges  and  immunities  of  the  citizens  of  every  other  State, 


APPENDIX  F.  569 

at  the  same  time  and  under  all  circumstances.  Such  a  construction  would  lead 
to  the  most  extraordinary  consequences.  It  would  at  once  destroy  all  the  fun- 
dameutal  limitations  of  the  State  constitutions  upon  the  rights  of  their  own 
citizens ;  and  leave  all  those  rights  at  the  mercy  of  the  citizens  of  any  other 
State,  which  should  adopt  different  limitations.  According  to  this  construction, 
it'  all  the  State  constitutions,  save  one,  prohibited  Slavery,  it  would  be  in  the 
power  of  that  single  State,  by  the  admission  of  the  right  of  its  citizens  to  hold 
Slaves,  to  communicate  the  same  right  to  the  citizens  of  all  the  other  States 
within  their  own  exclusive  limits,  in  defiance  of  their  own  constitutional  prohibi- 
tions ;  and  to  render  the  absurdity  still  more  apparent,  the  same  construction 
would  communicate  the  most  opposite  and  irreconcilable  rights  to  the  citizens 
of  different  States  at  the  same  time. 

It  seems  therefore  to  be  undeniable,  upon  any  rational  interpretation,  that 
this  clause  of  the  Constitution  communicated  no  rights  in  any  State,  which  its 
own  citizens  do  not  enjoy,  and  that  the  citizens  of  Louisiana,  upon  their  admis- 
sion into  the  Union,  in  receiving  the  benefit  of  this  clause,  would  not  enjoy 
higher,  or  more  extensive  rights  than  the  citizens  of  Ohio.  It  would  commu- 
nicate to  the  former  no  right  of  holding  Slaves,  except  in  States,  where  the 
citizens  already  possessed  the  same  right  under  their  own  State  constitutions 
and  laws. 

The  Treaty,  then,  by  providing  for  the  inhabitants  of  Louisiana  the  enjoy- 
ment of  all  the  rights,  advantages  and  immunities  of  citizens  of  the  United 
States,  seems  distinctly  to  have  pointed  to  those  derived  from  the  federal  Con- 
stitution, and  not  to  those,  which,  being  derived  from  other  sources,  were 
enjoyed  by  some  and  denied  to  others  of  the  citizens  of  the  United  States. 

The  remaining  clause  of  the  Treaty,  "  that  in  the  meantime  "  the  inhabitants 
"  shall  be  maintained  and  protected  in  the  free  enjoyment  of  their  liberty, 
property,  and  the  religion,  which  they  profess,  "  requires  no  examination.  It 
manifestly  applies  to  the  period  of  its  Territorial  government,  and  has  no  refer- 
ence to  the  terms  of  its  admission  into  the  Union,  or  to  the  condition  of  the 
Territory  after  it  becomes  a  State.  But  it  may  be  confidently  asked  whether, 
if  the  whole  Ordinance  of  1787,  which  contains  the  prohibition  of  Slavery, 
had  been  extended  to  Louisiana,  there  would  have  been  anything  inconsistent 
with  the  enjoyment  of  liberty,  property  or  religion?  So  far  as  Slaves  are 
deemed  property,  it  might  be  just  that  the  then  real  owners  within  the  Terri- 
tory should  be  secured  in  the  enjoyment  of  that  property ;  but  the  permission 
to  acquire  such  property  in  future,  like  every  other  right  of  property,  ought  to 
depend  upon  sound  legislation,  and  be  granted  or  denied  by  Congress,  as  its 
own  judgment  should  direct.  And  the  memorialists  cannot  perceive,  in  the 
clause  of  the  Treaty,  any  restriction  upon  the  right  of  Congress  to  exercise 
the  utmost  freedom  of  legislation  as  to  the  future  introduction  of  Slaves  into 
the  ceded  territory. 

Congress,  after  this  cession,  divided  the  Territory  into  two  Territorial 
governments;  and  by  an  act  passed  on  the  2nd  of  March,  1805,  in  the  exercise 
of  its  legislative  discretion,  directed  that  the  Orleans  Territory  (which  has 
since  become  the  State  of  Louisiana),  should  be  governed  by  the  Ordinance  or 
1787,  excepting  as  to  the  descent  and  distribution  of  estates,  and  the  article 
respecting  Slavery.  By  a  subsequent  act  of  the  llth  of  April,  1811,  author- 
izing the  inhabitants  of  this  Territory  to  become  a  State,  Congress  annexed 
several  highly  important  conditions,  to  the  exercise  of  this  high  act  of  sove- 
reignty. Among  other  conditions  it  required  that  the  River  Mississippi,  and 
the  waters  thereof,  should  be  highways,  and  remain  forever  free  to  all  the  inha- 
bitants of  the  United  States  ana  its  Territories,  without  any  tax,  toll  or  impost 
laid  by  the  State  therefor  ;  that  the  constitution  should  contain  the  fundamental 
principles  of  civil  and  religious  liberty,  and  should  allow  the  trial  by  jury  in 


570  WEBSTER'S  REAL  CONSTITUTIONAL  VIEWS. 

criminal  cases,  and  the  privilege  of  the  writ  of  habeas  corpus ;  that  all  the  laws, 
records  and  judicial  proceedings  of  the  State,  judicial  and  legislative,  should  be 
in  the  language,  in  which  the  laws  of  the  United  States  are  written ;  that  the 
people  should  disclaim  all  rights  to  the  unappropriated  Territory,  within  the 
limits  of  the  State,  and  that  the  same  should  oe  at  the  disposal  of  the  United 
States ;  that  the  lands  sold  by  the  United  States  should  be  exempt  from 
taxation  for  five  years  from  the  sale ;  and  that  lands  of  non-residents  should 
not  be  taxed  higher  than  those  of  residents.  These  conditions  are  certainly 
very  striking  limitations  of  sovereignty,  and  embrace  most  of  the  fundamental 
regulations  of  the  Ordinance  of  1787,  excepting  the  article  touching  Slavery. 
It  is  not  known  to  the  memorialists  that  any  doubt  of  their  constitutionality,  or 
of  their  perfect  harmony  with  the  treaty  of  1803,  was  ever  entertained,  either 
in  Congress  or  in  Louisiana ;  and  yet  they  contained  some  principles  as  repug- 
nant to  the  original  jurisprudence  of  the  Territory  at  the  time  of  its  cession,  as 
could  well  be  devised ;  and  if  Congress  could  then  impose  such  conditions, 
what  reason  is  there  to  say,  that  it  may  not  impose  such  conditions  on  the  Mis- 
souri Territory  ?  and  if  such  conditions,  why  not  any  others,  which  its  wisdom, 
its  justice  or  its  policy  may  dictate  ? 

Upon  the  whole,  the  memorialists  would  most  respectfully  submit,  that  the 
terms  of  the  Constitution,  as  well  as  the  practice  of  the  governments  under  it, 
must,  as  they  humbly  conceive,  entirely  justify  the  conclusion,  that  Congress 
may  prohibit  the  further  introduction  of  Slavery  into  its  own  Territories, 
and  also  make  such  prohibitions  a  condition  of  the  admission  of  any  New 
State  into  the  Union. 

If  the  Constitutional  power  of  Congress  to  make  the  proposed  prohibition  be 
satisfactorily  shown,  the  justice  and  policy  of  such  prohibition  seem  to  the 
undersigned  to  be  supported  by  plain  and  strong  reasons.  The  permission  of 
Slavery  in  a  New  State  necessarily  draws  after  it  an  extension  of  that  inequality 
of  representation,  which  already  exists  in  regard  to  the  original  States.  It 
cannot  be  expected,  that  those  of  the  original  States,  which  do  not  hold  Slaves, 
can  look  on  such  an  extension  as  being  politically  just.  As  between  the 
original  States,  the  representation  rests  on  compact  and  plighted 
faith,  and  your  memorialists  have  no  wish,  that  that  compact  should 
be  disturbed,  or  that  plighted  faith  in  the  slightest  degree  violated. 
But  the  subject  assumes  an  entirely  different  character,  when  a 
New  State  proposes  to  be  admitted.  With  her  there  is  no  com- 
pact, and  no  faith  plighted;  and  where  is  the  reason,  that  she  should 
come  into  the  Union  with  more  than  an  equal  share  of  political  im- 
portance and  political  power?  Already  the  ratio  of  representation, 
established  by  the  Constitution,  has  given  to  the  States  holding  Slaves  twenty 
members  in  the  House  of  Representatives  more  than  they  would  have  been 
entitled  to,  except  under  the  particular  provision  of  the  Constitution.  In  all 
probability  this  number  will  be  doubled  in  thirty  years.  Under  these  circum- 
stances, we  deem  it  not  an  unreasonable  expectation,  that  the  inhabitants  of 
Missouri  should  propose  to  come  into  the  Union,  renouncing  the  right  in  ques- 
tion, and  establishing  a  constitution,  prohibiting  it  for  ever.  Without  dwelling 
upon  this  topic,  we  have  still  thought  it  our  duty  to  present  it  to  the  consider- 
ation of  Congress.  We  present  it  with  a  deep  and  earnest  feeling  of  its  import- 
ance, and  we  respectfully  solicit  for  it  the  full  consideration  of  the  National 
Legislature. 

Your  memorialists  were  not  without  the  hope,  that  the  time  had  at  length 
arrived,  when  the  inconvenience  and  the  danger  of  this  description  of  popula- 
tion had  become  apparent,  in  all  parts  of  this  country,  and  in  all  parts  of  the 
civilized  world.  It  might  have  been  hoped  that  the  New  States  themselves 
would  have  had  such  a  view  of  their  own  permanent  interests  and  prosperity, 


APPENDIX  F.  571 

as  would  have  led  them  to  prohibit  its  extension  and  increase.  The  wonderful 
increase  and  prosperity  of  the  States  north  of  the  Ohio  is  unquestionably  to  be 
ascribed  in  a  great  measure  to  the  consequences  of  the  Ordinance  of  1787 ;  and 
few,  indeed,  are  the  occasions,  in  the  history  of  nations,  in  which  so  much  can 
be  done,  by  a  single  act,  for  the  benefit  of  future  generations,  as  was  done  by 
this  Ordinance  of  1787;  and  as  may  now  be  done  by  the  Congress  of  the 
United  States.  We  appeal  to  the  justice  and  the  wisdom  of  the  National 
Councils  to  prevent  the  further  progress  of  a  great  and  serious  evil :  We  appeal 
to  those  who  look  forward  to  the  remote  consequences  of  their  measures,  and 
who  cannot  balance  a  temporary  or  tritiing  convenience,  if  there  were  such, 
against  a  permanent,  growing,  and  desolating  evil. 

We  cannot  forbear  to  remind  the  two  Houses  of  Congress,  that  the  early  and 
decisive  measures  adopted  by  the  American  Government  for  the  abolition  of 
the  Slave  Trade  are  among  the  proudest  memorials  of  our  nation's  glory.  That 
Slavery  was  ever  tolerated  in  the  Republic  is,  as  yet,  to  be  attributed  to  the 
policy  of  another  government.  No  imputation  thus  far,  rests  on  any 
portion  of  the  American  Confederacy.  The  Missouri  Territory  is  a  new 
country.  If  its  extensive  and  fertile  fields  shall  be  opened  as  a  market  for 
Slaves,  the  Government  will  seem  to  become  a  party  to  a  traffic  which,  in  so 
many  acts,  through  so  many  years,  it  has  denounced  as  unpolitic,  unchristian, 
inhuman.  To  enact  Laws  to  punish  the  traffic,  and  at  the  same  time  to  tempt 
cupidity  and  avarice  by  the  allurements  of  an  insatiable  market,  is  inconsistent 
and  irreconcilable.  Government  by  such  a  course,  would  only  defeat  its  pur- 
poses, and  render  nugatory  its  own  measures.  Nor  can  the  laws  derive  support 
from  the  manners  of  the  people  if  the  power  of  moral  sentiment  be  weakened, 
by  enjoying,  under  the  permission  of  Government,  great  facilities  to  com- 
mit offences.  The  laws  of  the  United  States  have  denounced  heavv  penalties 
against  the  traffic  of  Slaves,  because  such  traffic  is  deemed  unjust  and  inhuman. 
We  appeal  to  the  spirit  of  these  laws :  We  appeal  to  justice  and  humanity : 
We  ask  whether  they  ought  not  to  operate,  on  the  present  occasion,  with  all 
their  force  ?  We  have  a  strong  feeling  of  the  injustice  of  any  toleration  of 
Slavery.  Circumstances  have  entailed  it  on  a  portion  of  our  community,  which 
cannot  be  immediately  relieved  from  it,  without  consequences  more  injurious 
than  the  suffering  of  the  evil.  But  to  permit  it  in  a  new  country,  where  yet 
no  habits  are  formed  which  render  it  indispensable,  what  is  it,  but  to  encourage 
that  rapacity,  and  fraud  and  violence,  against  which  we  have  so  long  pointed 
the  denunciations  of  our  penal  code  ?  What  is  it,  but  to  tarnish  the  proud  fame 
of  the  country  ?  What  is  it,  but  to  throw  suspicion  on  its  good  faith,  and  to 
render  questionable  all  its  professions  of  regard  for  the  rights  of  humanity  and 
the  liberties  of  mankind  ?  As  inhabitants  of  a  free  country  ;  as  citizens  of  a 
great  and  rising  Republic  ;  as  members  of  a  Christian  community;  as  living  in 
a  liberal  and  enlightened  age,  and  as  feeling  ourselves  called  upon  by  the 
dictates  of  religion  and  humanity ;  we  have  presumed  to  offer  our  sentiments 
to  Congress  on  this  question,  with  a  solicitude  for  the  event,  far  beyond  what 
a  common  occasion  could  inspire. 


APPENDIX  G. 


EXTRACTS  FROM  "THE  LOST  PRINCIPLE,"  BY  "BARBA- 
ROSSA,"   PUBLISHED  AT   RICHMOND   IN   1860. 

THE   SECTIONAL  EQUILIBRIUM.  —  HOW   IT  WAS   CREATED. 

IN  the  constitutional  convention  of  1829,  "Watkins  Leigh  said:  "  The  fed- 
eral convention  of  1787  had,  for  the  first  time,  to  arrange  a  representation  of  the 
people  in  congress.  What  was  the  origin  of  the  federal  number  I  do  not  certainly 
knoio.  I  have  had  recourse,  in.  vain,  to  every  source  of  information  accessible  to 
ascertain  how  that  precise  portion  of  slaves  —  THREE-FIFTHS  —  came  to  be 
adopted,  what  mode  or  principle  of  estimate  led  to  it.  Some  reason  there  must 
have  been'* 

It  is  my  purpose,  in  the  following  pages,  to  solve  this  question  of  consti- 
tutional history  —  to  ascertain  the  reason  that  operated  on  the  convention 
which  constructed  the  government  under  which  we  live,  to  adopt  in  the  popu- 
lar basis  the  fractional  representation  which  was  awarded  to  the  servile  popu- 
lation of  the  South.  The  report  of  "  The  Debates  of  the  Convention  of  1787," 
by  Mr.  Madison,  enables  me  to  do  this.  It  is  the  only  source  from  which  that 
information  can  be  derived,  for  the  fragment  of  those  proceedings  preserved  by 
Judge  Yates,  affords  no  clue  whatever  to  the  solution  of  this  interesting  prob- 
lem. "  The  Debates,"  in  1829,  were  not  published,  but  slept  in  manuscript, 
at  Montpelier,  until  the  death  of  Mr.  Madison  broke  the  seal. 

This  part  of  the  organic  law  has  excited  but  little  curiosity,  and  yet  it  is 
the  ground-work  of  the  political  edifice,  with  reference  to  which  every  other 
part  was  made.  A  just  understanding  of  this  part  of  the  constitution  will 
furnish,  if  I  mistake  not,  an  explanation  of  many  of  those  questions  that  have 
convulsed  the  North  and  South,  and  will  supply  us  with  the  means  of  ascer- 
taining how  far  we  have  departed  from  the  true  meaning  of  that  instrument — 
how  far  the  ship  of  State  has  drifted  from  the  intended  course. 

Mr.  Madison  was  himself  a  member  of  the  convention  of  1829,  and  heard 
the  enquiry  of  Mr.  Leigh,  but  said  nothing. 

The  constitution  of  the  united  states  is  generally  understood  to  be  a  com- 
pact to  which  the  several  states  are  parties ;  and  hence,  that  all  the  rights 
which  it  provides  are  state  rights,  and  the  remedies  for  the  violation  of  those 
rights,  state  remedies.  In  consequence  of  this  view  of  the  constitution,  state 
secession  and  state  interposition  have  been  suggested  as  the  modes  of  redress 
in  the  several  cases  to  which  they  apply.  But  I  shall  attempt  to  prove,  by 
authentic  evidence,  that  this  is  not  true  in  the  exclusive  sense  in  which  it  has 
been  stated. 

The  constitution  is,  indeed,  a  compact  between  states,  but  it  is  also  a 
compact  between  slaveholding  and  non-slaveholding  sections ;  and  those  sec- 


APPENDIX  G.  573 

tions  are  susceptible  of  obligations  and  injuries.  This  is  not  the  least  interest- 
ing light  in  which  the  constitution  presents  itself,  and  thus  viewed  is  a  great 
treaty  between  two  nations  of  opposite  civilizations,  and,  in  many  respects,  op- 
posite interests,  making  the  federal  system  even  more  complex  than  it  has  been 
generally  supposed  to  be. 

The  true  character  of  the  constitution,  and  the  government  which  has  grown 
out  of  it,  is  illustrated  by  the  political  parties  which  have  arisen  under  it.  At 
first,  a  consolidating  tendency  threatened  to  absorb  the  states.  This  produced 
the  state  rights  party  —  a  school  founded  by  Jefferson  and  Madison,  and  after- 
wards sustained  by  a  succession  of  great  men,  of  whom  Calhoun  was  the  most 
illustrious.  Calhoun  devoted  the  energies  of  his  wonderful  intellect  to  devel- 
oping this  theory  of  the  constitution.  Perceiving  that  the  congressional  or 
departmental  checks  were  of  a  subordinate  character,  and  did  not  operate  to 
restrain  the  ruling  power  of  the  constitution,  he  attempted  to  eliminate  from 
the  government  a  veto  power  in  the  hands  of  the  states,  which  he  denominated 
an  equilibrium,  but  so  denominated  for  no  better  reason,  as  I  conceive,  than 
that  its  originator  would  have  employed  it  as  an  imperfect  substitute  for  that 
wise  and  healing  principle. 

An  equilibrium,  properly  so-called,  enters  into  the  government  and  is  its 
living  principle.  It  is  ever  present ;  it  assists  in  the  deliberations  of  the  legis- 
lature and  partakes  of  the  enactment  of  laws ;  it  moderates  the  judicial  power, 
and  in  the  execution  of  the  laws  tempers  the  executive.  But  the  states,  act- 
ing as  tribunes,  as  they  have  been  called  from  their  fancied  resemblance  to  that 
Roman  officer,  are  not  present  in  the  legislative  chambers  to  arrest  the  passage 
of  bills,  but  are  to  be  invoked  to  unravel  that  which  has  been  woven,  to  repeal 
that  which  has  been  enacted,  to  undo  that  which  has  been  done,  and  that  only 
within  the  narrow  limits  of  a  state  jurisdiction,  and  in  case  of  a  deliberate, 
palpable  and  dangerous  exercise  of  powers,  not  granted  by  the  constitution.  But 
the  equilibrium  is  confined  by  no  bounds  to  its  discretion,  nor  even  to  cases 
where  the  constitution  is  supposed  to  be  infracted,  but  decides  upon  the  equity 
and  policy  as  well  as  the  constitutionality  of  political  action,  and  is  omnipotent 
to  repress  corruptions  and  prevent  extravagant  expenditures  of  public  money. 

The  nature  of  the  constitution  is  imprinted  on  its  face,  and  bears  unmistak- 
able traces  of  its  two-fold  origin.  The  states,  in  their  sovereign  capacity,  are 
represented  in  the  senate ;  for,  wherever  sovereignty  exists,  equality  necessarily 
prevails,.  But  the  sections  are  represented,  and  their  existence  acknowledged 
in  the  Electoral  College,  and  in  the  constitution  of  the  first  branch  of  congress. 
It  will  be  seen,  hereafter,  that  the  senate  was  constituted  on  its  present  basis 
by  a  conflict  between  the  great  and  small  states,  and  that  the  basis  upon  which 
the  other  branch  of  congress  was  founded  was  the  result  of  a  collision  between 
the  North  and  South,  and  that  the  differences,  in  both  cases,  were  adjusted 
upon  the  principle  of  equality. 

The  difference  between  a  simple  compact  among  the  states,  and  one  to  which 
sections  and  states  are  equally  parties,  in  respect  to  the  range  of  powers  with 
which  it  was  thought  expedient  to  invest  government,  is  illustrated  by  the 
articles  of  confederation  and  that  constitution  under  which  we  live. 

In  remarking  upon  that  part  of  the  constitution  which  contains  the  provi- 
sion for  a  slave  representation,  a  recent  intelligent  writer  says:  "This  was  the 
first  step,  and  the  next  was  the  formation  of  the  present  constitution,  when  a 
contest  arose  as  to  the  ratio  of  representation.  Should  the  South  have  as 
many  representatives,  in  proportion  to  her  population,  as  the  North  ?  It  was 
just  and  right  that  she  should.  The  federal  government  had  no  concern  with 
the  relations  between  blacks  and  whites,  the  different  classes  of  her  population. 
It  had  not  the  right  to  inquire  whether  the  negro  was  a  slave  or  free.  The 
slaves  were  a  better  population  than  the  free  negroes,  and  if  the  latter  were  to 


574  EXTRACT  FROM  "THE  LOST  PRINCIPLE." 

be  counted  at  their  full  number  in  the  apportionment  of  representation,  so 
ought  the  former.  The  right  could  not  be  refused,  because  the  slaves  were 
naturally  or  legally  unequal  to  the  whites ;  for  so  are  the  free  negroes.  It 
could  not  be  refused,  because  they  have  no  political  rights;  for  neither  have 
the  free  negroes,  paupers,  women  and  children.  They  are  an  essential  part  of 
the  population ;  if  absent,  their  places  must  be  filled  by  other  laborers,  and  if 
they  are  property  as  well  as  population,  it  is  an  additional  reason  for  giving 
their  owners  the  security  of  full  representation  for  them.  But  the  South,  as 
usual,  yielded  to  Northern  exorbitance,  and  agreed  that  five  slaves  should 
count  only  as  three  free  negroes.  Therefore,  instead  of  105  representatives  in 
congress,  we  have  only  91." 

If,  indeed,  the  constitution  is  to  be  regarded  in  the  light  of  a  compact  be- 
tween two  nations,  it  is  impossible  to  say  that  it  was  just  and  right  that  the 
South  should  have  a  full  representation  of  her  slaves,  without  first  ascertain- 
ing what  effect  that  would  have  upon  the  distribution  of  the  powers  of  govern- 
ment between  the  parties.  If  the  effect  of  a  full  representation  of  slaves  would 
place  the  government  under  the  dominion  of  the  South,  the  slave  power,  who 
can  say  that  there  is  any  principle  of  natural  justice  that  would  have  required  , 
the  North  to  agree  to  any  such  stipulation  ?  If  their  total  or  partial  exclusion 
would  have  produced  the  contrary  effect,  and  placed  the  South  under  the  con- 
trol of  the  free-soil  power,  as  little  could  be  said  in  defence  of  such  an  arrange- 
ment. Each  party  was  entitled  to  a  safe  representation  in  the  government, 
which  could  result  alone  from  introducing  the  principle  of  equality  in  the  divi- 
sion of  power ;  for  in  nature,  as  it  is  in  the  court  of  chancery,  equality  is  eq- 
uity. The  idea  that  the  partial  exclusion  of  slaves  from  the  representative 
basis  was  due  to  their  moral  and  legal  inferiority  is  wholly  unfounded,  as  will 
hereafter  be  proved,  although  that  doctrine  is  inculcated  by  the  respectable  au- 
thority of  the  federalist.  The  Southern  delegates  in  the  federal  convention 
will  likewise,  in  the  progress  of  this  narrative,  be  vindicated  from  the  insin- 
uated charge  of  having  submitted  to  Northern  exorbitance  ;  but  the  integrity  of 
their  motives  will  be  vindicated  at  the  expense  of  their  political  sagacity. 

The  sectional  line  between  the  North  and  the  South  was  almost  as  deeply 
drawn  in  1787,  as  it  is  at  the  present  time.  This  will  be  clearly  exhibited  by 
an  inspection  of  that  part  of  the  debates  of  the  convention  now  about  to  pass 
under  review.  It  contradicts  the  notion  entertained  by  some,  that  this  sec- 
tional antagonism  is  of  recent  growth  and  consequently  that  the  constitution 
of  the  united  states  was  not  made  with  reference  to  it.  The  states  to  the 
northward  of  Virginia  and  Maryland  were  either  already  free  states  or  were 
preparing  to  become  so,  and  it  was  apparent  to  every  one  that  they  would  soon 
consummate  their  intention.  The  Northern  delegates  in  the  convention  of 
1787,  all  acted  in  the  free-soil  interest,  and  the  delegates  from  the  South  were 
unanimous  in  the  defence  of  the  interest  of  slavery.  To  reconcile  that  differ- 
ence constituted  the  chief  labor  of  the  convention.  The  year  following,  in  the 
South  Carolina  convention  of  ratification,  Gen.  Pinckney  said  :  — 

"  But  striking  as  this  difference  is,  it  is  not  be  compared  to  the  difference 
that  there  is  between  the  inhabitants  of  the  Northern  and  Southern  states ;  when 
I  say  Southern,  I  mean  Maryland,  and  the  states  southward  of  her.  There 
we  may  truly  observe  that  nature  has  drawn  as  strong  marks  of  distinction  in 
the  habits  and  manners  of  the  people,  as  she  has  in  her  climates  and  produc- 
tions. The  Southern  citizen  beholds  with  a  kind  of  surprise  the  simple  man- 
ners of  the  East,  and  is  too  often  induced  to  entertain  undeserved  opinions  of 
the  purity  of  the  Quaker,  while  they,  in  their  turn,  seem  concerned  at  what 
they  term  the  extravagance  and  dissipation  of  their  Southern  friends,  and  re- 
probate, as  an  unpardonable  moral  and  political  evil,  the  dominion  they  hold  over 
a  part  of  the  human  race''  Elliot's  Debates,  vol.  iv.  p.  310. 


APPENDIX  G.  575 

This  feeling,  which  existed  to  so  great  a  degree  among  the  people  in  the  two 
sections,  was  ever  showing  itself  in  congress  whenever  the  interests  or  power 
of  either  was  involved.  The  Northern  members  objected  to  the  admission  of 
Kentucky  into  the  union,  the  Southern  states  objected  to  the  admission  of  Ver- 
mont. That  fraternal  love  which  many  have  supposed  to  have  existed  at  that 
period  between  the  North  and  South,  is  purely  imaginary  •  instead,  a  strong 
and  deep-rooted  antagonism  characterized  them  both.  Already  had  any  affilia- 
tion between  a  Northern  member  of  congress  and  the  Southern  members  been 
put  under  the  ban  of  the  North.  General  Sullivan  thus  writes  to  Washington  : 
"  The  choice  of  minister  of  war  was  postponed  to  the  first  of  October.  This 
was  a  manoeuvre  of  Samuel  Adams  and  others  from  the  North,  fearing  that,  as  I 
was  in  nomination,  the  choice  would  fall  on  me,  who  having  apostatized  from  the 
true  New  England  faith,  by  sometimes  voting  with  the  Southern  states,  am  not 
eligible."  .  .  . 

On  Wednesday,  the  27th  June,  "Mr.  Rutledge  moved  to  postpone  the 
sixth  resolution  defining  the  powers  of  congress,  in  order  to  take  up  the 
seventh  and  eighth,  which  involved  the  most  fundamental  points,  the  rules  of 
suffrage  in  the  two  branches.  Agreed  to  nem.  con''  The  seventh  and  eighth 
resolutions  of  the  report,  were  in  the  words  following :  — 

"  7.  Resolved,  That  the  right  of  suffrage  in  the  first  branch  of  the  national 
legislature,  ought  not  to  be  according  to  the  rule  established  in  the  articles  of 
confederation,  but  according  to  some  equitable  ratio  of  representation,  namely, 
in  proportion  to  the  whole  number  of  white  and  other  free  citizens  and  inhabi- 
tants, of  every  sex,  age,  and  condition,  including  those  bound  to  servitude  for 
a  term  of  years,  and  three-Jifths  of  all  other  persons  not  comprehended  in  the 
foregoing  description,  except  Indians  not  paying  taxes  in  each  state. 

"8.  Resolved,  That  the  right  of  suffrage  in  the  second  branch  of  the  na- 
tional legislature,  ought  to  be  according  to  the  rule  established  for  the  first." 

It  will  be  remarked,  that  the  whole  question,  which  was  ultimately  divided 
into  two  branches,  was,  by  these  resolutions,  presented  in  one  point  of  view. 
The  debate  which  ensued  was  extremely  interesting,  and  shows,  even  in  the 
condensed  and  imperfect  account  of  it  which  has  reached  us,  the  difficulties 
which  the  convention  encountered.  The  proposed  settlement  was  first  assailed 
by  the  small  states ;  and  one  of  the  expedients  proposed  by  that  interest  for 
the  settlement  of  the  dispute  exhibits,  in  striking  colors,  the  deep-seated  ap- 
prehension, unfounded  as  it  was  then  pronounced,  and  has  since  turned  out  to 
be,  of  an  absorption  of  the  lesser  by  the  greater  states.  It  was  proposed  by 
the  delegates  from  New  Jersey  and  Delaware  to  confound  all  state  lines  and 
throw  them  into  one  mass,  or  into  hotchpot,  as  the  lawyers  of  the  convention 
called  it,  and  then  re-partition  the  territory  into  equal  parts  among  the  states. 
But  the  old  difficulty  would  still  have  existed.  Some  of  those  equal  allot- 
ments would  have  been  greatly  superior  to  others  in  wealth  and  population, 
which  would  have  caused,  to  borrow  a  passage  from  Burke  respecting  a  sim- 
ilar plan  in  the  French  constitution  of  1789,  "such  infinite  variations  oetween 
square  and  square,  as  to  render  mensuration  a  ridiculous  standard  of  power  in 
the  commonwealth,  and  equality  in  geometry  the  most  unequal  of  all  measures 
in  the  distribution  of  men."  New  Jersey  and  Delaware  demanded  such  a  con- 
solidation and  re-distribution  of  territory,  or  an  equality  of  representation  for 
the  states  in  every  department  of  government.  But  the  more  moderate  were 
content  with  an  equal  vote  in  the  senatorial  department,  which  they  insisted  as 
a  negative  "to  save  them  from  being  destroyed."  Self-protection  was  their 
avowed  object.  It  was  in  this  connection,  and  in  reply  to  Mr.  Ellsworth  of 
Connecticut,  that  Mr.  Madison  delivered  a  speech,  from  which  the  following 
extract  is  made.  It  bears  directly  on  the  object  of  this  publication,  and  states, 
in  the  most  explicit  language,  the  purpose  and  meaning  of  the  fractional  repre- 


576  EXTRACT  FROM  "THE  LOST  PRINCIPLE." 

sentation  awarded  to  the  South  in  both  the  legislative  departments  by  the 
seventh  and  eighth  resolutions  then  under  discussion.  It  is  to  the  ratio  which 
they  contained  that  Mr.  Madison  alludes  :  — 

"  He  admitted  that  every  peculiar  interest,  whether  in  any  class  of  citizens, 
or  any  description  of  states,  ought  to  be  secured  as  far  as  possible.  Wherever 
there  is  danger  of  attack,  there  ought  to  be  given  a  constitutional  power  of 
defence.  But  he  contended  that  the  states  were  divided  into  different  inter- 
ests, not  by  their  difference  of  size,  but  by  other  circumstances ;  the  most  ma- 
terial of  which  resulted  partly  from  climate,  but  principally  from  the  effects  of 
their  having,  or  not  having  slaves.  These  two  causes  concurred  in  forming 
the  great  division  of  interests  in  the  united  states.  It  did  not  lie  between  the 
large  and  small  states.  It  lay  between  the  Northern  and  Southern ;  and  if  any 
defensive  power  were  necessary,  it  ought  to  be  mutually  given  to  these  two  inter- 
ests. He  was  so  strongly  impressed  with  this  important  truth,  that  he  had  been 
casting  about  in  his  mind  for  some  expedient  that  would  answer  the  purpose. 
The  one  which  had  occurred,  was,  that  instead  of  proportioning  the  votes  of 
the  states  in  both  branches,  to  their  respective  number  of  inhabitants,  comput- 
ing the  slaves  in  the  ratio  of  five  to  three,  they  should  be  represented  in  one 
brancli  according  to  the  number  of  free  inhabitants  only;  and  in  the  other 
according  to  the  whole  number,  counting  the  slaves  as  free.  By  this  arrange- 
ment, the  Southern  scale  would  have  the  advantage  in  one  house,  and  the 
Northern  in  the  other.  He  had  been  restrained  from  proposing  this  expe- 
dient by  two  considerations ;  one  was  his  unwillingness  to  urge  any  diversity  of 
interests  on  an  occasion  where  it  is  but  too  apt  to  arise  of  itself;  the  other 
was  the  inequality  of  powers  that  must  be  vested  in  the  two  branches,  and 
which  would  destroy  the  equilibrium  of  interests." 

This  speech,  so  admirable  for  its  correct  appreciation  of  the  true  principles  of 
representative  government,  opens  the  discussion,  so  far  as  the  debates  show, 
upon  the  subject  of  slavery.  It  exhibits  the  principles  by  which  the  speaker  as 
a  constitution  maker  was  guided,  and  especially  sets  forth  the  principles  upon 
which  he  had,  as  a  Southern  delegate,  insisted.  There  could  not  be  produced 
more  undeniable  evidence  —  evidence  amounting  to  the  clearest  proof — that 
the  ratio  of  three-fifths,  as  it  stood  in  the  report  of  the  committee  of  the  whole, 
then  under  the  consideration  of  the  convention,  was  looked  upon  as  designed 
to  produce  an  equilibrium  between  the  two  sections.  This  is  fortified,  and  if 
any  doubt  remained,  would  be  rendered  certain,  by  the  narrative  of  the  intro- 
duction of  that  compromise  therefore  given.  This  is  but  the  contemporaneous 
exposition  of  the  purpose  of  the  proposed  basis,  by  a  single  member  of  the  con- 
vention, but,  let  it  be  borne  in  mind,  a  member  speaking  for  the  whole  South, 
and  speaking  to  the  whole  North.  I  will  proceed  to  collect  all  the  passages 
from  the  succeeding  debate,  which  concern  this  point,  in  order  to  prove  that  it 
was  universally  looked  upon  in  the  same  light  in  which  it  was  viewed  by  Mr. 
Madison.  By  this  means,  the  purpose  which  that  body  had  in  view,  in  estab- 
ishing  that  fractional  basis,  that  mode  of  distributing  power  between  jealous 
and  at  length  irritated  sections,  will  be  established  —  established,  it  is  believed, 
to  the  satisfaction  of  every  sound  understanding.  [He  then  proceeds  to  give 
extracts  from  the  ensuing  debate,  which  tend  to  sustain  his  theory.  But  the 
only  object  here  is  to  quote  enough  to  show  "  Barbarossa's "  theory.  He 
hardly  succeeds  in  showing  a  tangible  written  compact  in  the  sense  that  the 
constitution  is  such.] 


APPENDIX   H. 


REVIEW  OF  A.   H.   STEPHENS'  AND  J.   A.  JAMESON'S 
WORKS  ON  THE  CONSTITUTION. 

[From  the  Round  Table  of  October  10,  1868.] 
t 

1.  A  Constitutional  view  of  the  late  war  between  the  States  ;  its  causes,  character, 

conduct,  and  results.  Presented  in  a  series  of  colloquies  at  Liberty  Hall. 
By  Alexander  H.  Stephens.  Philadelphia:  National  Publishing  Co., 
1868. 

2.  The  Constitutional  Convention  ;  its  history,  powers,  and  modes  of  proceeding. 

By  John  Alexander  Jameson,  Judge,  etc.,  and  Professor  of  constitutional 
law,  etc.,  in  the  Chicago  University.  New  York  :  Charles  Scribner  &  Co., 
1867. 

THE  architects  who  builded  the  real  and  only  temples  of  American  liberty  — 
the  states :  and  those  who  afterwards  combined  them,  for  increased  security, 
into  the  structure  of  surpassing  grandeur,  beauty,  and  excellence,  called  "  the 
united  states;"  essayed  to  avoid  the  old-world  despotic  theory  of  Divine 
right,  which  really  signified  army-supported  polities,  and  to  build  entirely  upon 
the  idea  of  man's  capacity  for  self-government.  All  questions  were  to  be 
settled  without  force,  by  reason,  on  principles  of  justice;  and  all  political 
authority  except  derivative  and  delegated,  was  to  be  kept  out  of  the  govern- 
mental contrivances  to  be  made,  and  left  forever  in  the  people  —  this 
being  popular  sovereignty,  or  the  right  of  self-government.  Under  Providence, 
our  people  naturally  grew  into  organized  republics,  and  ruled  themselves  by 
the  only  true  Divine  right  of  government ;  for,  being  created  free  moral  agents, 
they  must  have  free  choice  in  all  personal,  social,  and  political  affairs,  in 
order  to  make  it  just  that  God  should  hold  them  responsible  for  their  pro- 
bationary acts. 

And  as  the  people  could  not  attend  personally  to  political  government  in 
large  commonwealths,  much  less  throughout  a  "  republic  of  republics,"  the  plan 
had  to  be  adopted,  of  appointing  certain  persons  to  do  this  part  of  "  the  people's 
business,"  and  of  putting  their  commission  to  act,  in  carefully  written  form,  so 
as  to  empower,  direct,  and,  at  the  same  time,  control  them  —  the  absolute  right 
of  such  empowering  (and  necessarily  of  withdrawing  power)  always  remaining 
in  the  people,  as  their  sovereignty,  or  right  of  self-government,  and  being 
inalienable.  The  writing  in  question  is  their  frame  of  government,  or  constitu- 
tion, and  is  the  most  important  and  sacred  of  public  things  —  the  very  pal- 
ladium of  law,  order,  and  all  private  rights  and  blessings.  It  is  the  only 
procuration  or  warrant  of  the  public  functionary.  Within  it,  he  is  justifiable  in 
his  doings ;  while  in  acting  outside  of  it,  he  becomes  a  malefactor,  nay  more,  an 
outlaw,  for  he  has  neither  its  authorization  nor  its  protection.  Moreover,  to 

37 


578  REVIEW  OF   STEPHENS  AND  JAMESON. 

secure  the  sacred  observance  of  this  vital  rescript,  and  to  prevent  usurpation, 
the  people  provided  for  the  exaction  of  an  oath  from  such  servants  and  trustees. 
That  oath  being  to  support  the  constitution ;  to  obey  its  commands ;  to  observe 
all  its  reservations ;  and  to  keep  themselves  under  it,  and  consequently  subor- 
dinate to  its  makers ;  the  functionaries  must  commit  perjury  and  treason  if  they 
"  act,  in  this  business,  outside  of  the  Constitution  !  " 

This  is  our  written  system.  The  same  general  principles  apply  to  both 
the  state  and  the  federal  constitutions.  The  people  were  above  them.  They 
must  remain  so,  unless  a  revolution  has  occurred,  which  has  made  them 
subjects. 

What  people  ?  How  organized  ?  And  how  capacitated  politically  to  act  ? 
These  questions  must  be  answered  from  contemporaneous  authorities,  as  ques- 
tions of  fact.  What  did  the  founders  say  upon  these  points  ?  and  induce  the 
people  to  declare  as  their  will  ?  Contemporanea  expositio  est  optima  et  fortissima. 
In  all  our  remarks  we  shall  hold  this  idea  in  view. 

Mr.  Stephens'  book  well  and  truly  presents  the  true  theory  of  our  "  republic 
of  republics ; "  but,  with  an  exception  to  be  mentioned,  its  evidences  and  argu- 
ments are  generally  those  of  the  great  intellects  who  have  shone  in  our  partisan 
politics  and  statesmanship ;  and  thus  a  noble  and  true  theory  is  narrowed  and 
degraded  to  a  matter  of  party  doctrine,  and  made  to  suffer  all  the  odium  and 
antagonism  that  befall  the  Democratic  party,  whereas  the  setting  forth  of  the 
original  formation  of  the  states :  their  character  ;  their  acts  in  federating :  and 
the  contemporaneous  expositions  of  all  these  things  by  the  fathers;  would 
have  placed  the  discussion  above  a  partisan  grade  and  atmosphere;  would 
have  been  more  worthy  of  a  leading  pen ;  and  would  have  been  much  more 
likely  to  bring  our  people  from  wandering  in  the  "  wilderness  of  sin,"  to 
the  promised  land  —  the  political  and  liberty -preserving  system  of  their 
fathers. 

However,  it  is  a  valuable  labor  to  group  even  these  authorities  upon  the 
points  of  the  book ;  and  it  is  a  highly  creditable  compilation,  skilfully  arranged, 
so  as  to  make  a  cogent,  and,  indeed,  a  conclusive  argument,  to  sustain  the 
federal  theory  of  the  Constitution. 

No  criticism  upon  the  style,  plan,  or  purpose,  need  be  made,  further  than  to 
say  that  the  English  is  good,  and  the  diction  respectable  —  the  graces  being 
few ;  the  plan  has  the  shape,  without  the  ease,  grace,  sparkle,  wit,  humor,  or 
point  of  good  colloquy ;  and  the  purpose  is  to  show,  by  facts,  authorities  and 
arguments,  that  our  political  system  is  a  federation  of  sovereign  States. 

The  peculiar  advantage  of  the  colloquial  mode  to  the  author  is,  that  he  fights 
ideal  foes  whose  strength  being  within  that  of  their  creator,  cannot  prevent  his 
predetermined  victory.  In  the  cause  of  truth,  however,  it  is  better  to  grapple 
with  the  real  deceivers  and  misleaders,  who  stand  thickly  around,  vulnerable  at 
every  point.  Vanquishing  the  foes  of  conservatism  and  peace,  in  presence  of 
the  governing  people  of  our  country,  does  practical  and  instant  good ;  while 
battling  with  prototypes  and  old  dogmas,  and  trusting  to  the  voters'  seeing 
points,  and  tracing  analogies,  postpones  indefinitely  the  victory,  to  which  the 
author's  righteous  cause  and  superior  powers  entitle  him,  and  which  would  be 
a  public  blessing !  Mr.  Stephens'  fine  faculties  should  be  exerted  on  the  ros- 
trum, and  in  Congress,  against  the  Shermans,  Sumners,  Binghams,  Butlers, 
Greeleys,  and  suchlike  breathing  evils,  rather  than  the  ideal  Heisters,  Bynums, 
and  Nortons,  or  even  the  defunct  Storys  and  Websters. 

If  it  was  well  to  go  back  to  the  "  Expounders,"  it  was  better  to  keep  on  to 
the  Constitutional  era,  where  the  very  dogmas  of  the  said  "  expounders  "  appear 
in  the  shape  of  charges  against  the  Constitution,  made  by  its  enemies,  to  defeat 
it.  This  would  have  enabled  the  author,  upon  every  point  and  argument  of 
his  book,  to  reproduce  Hamilton,  Madison,  Wilson,  Dickinson,  Washington, 


APPENDIX  H.   ^  579 

and  others,  with  far  greater  effect  than  results  from  repeating  Calhoun,  Bibb, 
Gen.  Jackson's  writers,  senate  resolutions,  and  Democratic  platforms.  And,  in 
truth,  as  expositors  of  our  system,  these  are  at  best  but  excellent  copies  of 
Madison,  Jefferson,  Tucker,  and  Taylor  of  Caroline;  and  even  the  latter  merely 
repeated  what  had  been  said  at  the  time  and  act  of  forming  the  Constitution,  by 
its  founders.  Therefore  we  regret  that  the  stones  of  Mr.  Stephens'  mosaic- 
work  were  mainly  quarried  from  the  mine  of  partisan  politics,  instead  of  con- 
stitutional history. 

However  the  calm,  candid,  and  truthful  tone  of  the  work  is  admirable  —  the 
spirit  of  the  constitutional  era  running  through  all  its  pages.  And  it  is  to  be 
regretted  that  the  superabundant  proofs  which  that  era  affords,  are  so  sparingly 
used,  when  they  would  have  added  to  the  conclusions  of  the  work 

"  Confirmation  strong 
As  proofs  of  Holy  writ." 

One  of  Mr.  Stephens'  collocutors  opens  the  discussion,  by  speaking  of  that 
gentleman's  apparent  inconsistency,  in  supporting  secession,  after  making  his 
great  Union  speech  of  November  14,  1860 ;  whereupon  Mr.  S.  proceeds  at 
length,  and  most  satisfactorily,  to  explain  that  our  polity  was  a  union  of  states,  of 
which  Georgia  was  an  equal  member ;  that  our  political  system  is  merely  the 
government  of  republican  states  by  themselves — the  governmental  contrivances 
being  their  creations,  administered  by  their  citizens,  and  only  possessing  and 
exercising  their  power ;  that  he  advised  Georgia  to  acquiesce  in  Lincoln's  elec- 
tion ;  that  she  did  not  do  so,  but  withdrew  from  the  association  of  states  she, 
as  to  herself,  had  formed ;  that  in  all  this  she  simply  exercised  her  sovereignty, 
and  demanded  of  him  her  due  obedience  and  devotion.  He  has  no  difficulty  in 
vindicating  his  consistency. 

He  clearly  sets  forth  the  history  of  the  Union ;  the  action  taken  by  all  the 
States  to  form  the  first  federation,  which  he  analyzes ;  the  defects  of  the  sys- 
tem, and  the  consequent  general  desire  for  a  change ;  the  Annapolis  Conven- 
tion of  1786  ;  the  Philadelphia  Convention  and  the  credentials  of  the  delegates 
from  their  States  ;  the  action  of  the  Convention ;  the  constitution  they  proposed, 
with  an  excellent  analysis  thereof;  maintaining  throughout  and  establishing 
irrefutably  the  proposition  that  the  Constitution  is  a  compact  of  federation 
between  sovereign  States. 

He  introduces  a  decisive  mode  of  proof,  which  seems  not  to  have  been  much 
appreciated  till  an  English  publication  entitled  " Davis  and  Lee"  in  1864  or 
5,  (republished  here)  put  it  prominently  forward,  viz :  The  history  of  the  con- 
ventions, debates  and  ratifications  of  the  several  States  —  thus  exhibiting  pre- 
cisely what  gave  the  federal  constitution  its  existence  and  validity,  and  the 
federal  functionaries  their  sole  warrant  of  jurisdiction  within  a  given  state.  He 
then  quotes  and  comments  on  Calhoun,  Bibb,  Jackson,  Weoster,  the  dicta 
of  the  Supreme  Court  of  the  United  States,  the  Senate  resolutions  of  1838  and 
1860,  etc.,  —  all  supporting  state  sovereignty;  and  criticises  Story  and  Motley, 
as  well  as  Webster's  efforts,  that  oppose  that  theory.  And  after  quoting  Jef- 
ferson, Hamilton,  Tucker,  Rawle,  John  Q.  Adams,  Lincoln,  Greeley,  and  the 
Hartford  convention  on  secession,  he  concludes  with  a  powerful  chapter  on  the 
strength  of  confederations  and  the  working  of  our  system. 

Altogether  we  consider  this  work  very  valuable,  from  its  calm,  judicial  spirit, 
and  from  its  strong  and  logical  presentation  of  overwhelming  proofs,  on  the 
most  important  of  all  political  questions.  Its  appearance  is  timely,  for  public 
attention  is  more  than  ever  directed  to  the  questions  discussed.  It 'is,  however, 
like  the  most  of  judicial  opinions,  founded  entirely  upon  precedents;  and  much 
disappointment  will  be  felt,  that  so  superior  and  fertile  a  mind,  should  have 


580  REVIEW  &?  STEPHENS  AND  JAMESON. 

produced  a  work  with  so  little  originality,  profound  thought,  careful  analysis, 
and  philosophical  reasoning.  As  a  commentary  it  is  far  below  Upshur  and 
Calhoun ;  as  a  criticism  on  Story  and  Webster,  it  does  not  approach  Bledsoe  ; 
and  in  its  most  valuable  argument,  it  has  been  anticipated  by  the  English  work 
before  mentioned.  In  short,  a  student  of  constitutional  science  will  find  little 
that  he  has  not  seen  before. 

All  things  considered,  however,  the  book  is  a  worthy  addition  to  our  political 
literature.  While  it  gathers,  and  puts  in  available  and  useful  form,  a  multitude 
of  scattered  fragments  of  statesmanship  and  political  philosophy,  it  comments 
upon  them,  and  the  errors  it  opposes,  with  a  most  commendable  temper,  candor, 
truthfulness  and  logical  force.  Every  citizen  can  read  it  with  profit,  and  every 
library  should  contain  it. 

The  other  work,  mentioned  in  the  heading,  is  written  by  a  professor  of  con- 
stitutional law,  who  seems  not  to  be  a  professor  of  constitutional  facts  ;  but  as 
a  literary  performance,  and  as  an  effort  of  original  reasoning,  it  is  far  superior 
to  that  of  Mr.  Stephens ;  and  it  exhibits  more  research,  and  profundity  of 
thought.  It  is  however  replete  with  inexcusable  and  pernicious  errors.  Like 
Story  and  Webster,  the  author  comes  to  his  work  with  a  cherished  theory. 
Assuming  his  premises,  culling  such  facts  of  constitutional  history  as  suit  him, 
and  arguing  logically,  he  finally  reaches  the  conclusions  he  desires. 

He  sets  out  by  dividing  conventions  into  four  classes  :  "  I.  The  sponta- 
neous convention,  or  public  meeting.  II.  The  ordinary  legislative  convention, 
or  general  assembly.  III.  The  revolutionary  convention.  IV.  The  consti- 
tutional convention."  The  first  three  classes  are  sufficiently  described  for  our 
purpose  by  the  appellations :  the  fourth  is  the  main  subject  of  the  work,  which 
may  be  described  as  the  full  gospel  of  consolidation  and  centralism.  The  author 
is  unable  to  imagine  a  voluntary  "  Government,"  or  union,  that  can  be  other 
than  "  a  rope  of  sand : "  he  attributes  to  "  Government "  that  coercive 
power  over  States,  that  was  expressly  denied  to  it  by  its  makers :  he  trans- 
forms the  federal  agency  into  a  Briareus,  whose  hundred  or  less  hands  grasp  as 
many  helpless  but  sweetly  captivated  states,  which  are  thus  strongly  attached 
to  the  Union :  and,  to  cap  the  climax,  he  thinks  the  constitution  of  a  state,  a 
straight  jacket,  put  upon  the  people  thereof,  by  a  superior  power  (because 
they  are  crazy,  idiotic,  or  otherwise  incapable  of  self-government  —  we  pre- 
sume) which  they  cannot  put  off  without  leave,  no  matter  how  dirty,  ragged, 
hurtful,  or  otherwise  objectionable  it  may  be. 

That  this  is  a  fair  presentation  of  the  constitutional  law  this  professor  pro- 
fesses, is  evinced,  we  think,  by  the  following  samples  of  his  theory,  as  well  as 
style.  He  sets  out  by  defining  the  word  "  state "  as  meaning  "  1st,  any 
organized  political  community;"  and  2nd,  "  in  a  limited  sense  .  .  .  a  mem- 
ber of  the  American  union."  With  great  parade  of  definition,  and  show  of 
careful  reasoning,  he  asks  where  "  sovereignty  resides  ?  "  and  remarks  that 
"the  difficulty  is,  in  the  jumble  of  national  and  State  organizations,  to  locate 
it."  He  finally  "  locates  "  it  in  the  nation,  and  generalizes  thus — paraphras- 
ing Webster :  "  The  people  of  the  United  States,  in  1789,  threw  the  exist- 
ing constitutions  of  the  several  States  into  hotchpotch,  and  repartitioned  among 
these  bodies,  the  powers  they  were  thenceforth  to  exercise,  giving  a  portion 
thereof  to  the  States,  a  portion  to  the  general  government,  and  reserving  the 
residue  to  themselves.  And  the  States  have  habitually  conformed  to  the  edict, 
which  thus  curtailed,  and  ascertained  their  powers."  [p.  29.]  "Under  the 
constitution  of  the  nation,  .  .  .  each  State  is  permitted,  by  the  sovereign, 
to  frame  for  its  own  people,  its  local  constitution."  And,  continues  he,  in 
doing  this,  "  they  perform  a  delegated  function."  [p.  65.] 

Not  a  fact,  or  a  phantom  of  a  fact,  in  all  American  history,  supports  such 
ideas ;  but  everything  disproves  them.  But  it  were  a  mistake  to  suppose  the 


APPENDIX  H.  581 

author's  ideas  to  be  a  "jumble;  "  or  that  the  contents  of  his  head  are  hotch- 
potchy.  On  the  contrary,  he  reasons  clearly  from  consolidation  premises, 
though  he  evinces  some  creative  genius  in  making  them.  It  must  be  noted, 
however,  that  the  constitutional  construction  of  the  school  to  which  he  belongs, 
means  building,  rather  than  construing ;  and  their  structure  is  like  the  temple  of 
Fame  in  the  picture,  majestic  and  "cloud-capped,"  but  is  unsubstantial,  unprac- 
tical, unhistorical,  and  unconstitutional.  They  seem  to  think  it  right,  or  at  least 
"  smart,"  to  make  the  facts  of  their  great  political  fabric.  Why  should  they 
not  ?  Did  not  the  French  at  Suez  fabricate  stone  for  their  piers,  jetties,  and 
other  constructions  ?  Is  it  not  better  and  easier  to  make  the  fabrications  for 
constitutional  construction,  since  neither  materials  nor  manipulation  are 
required  ?  If  Professor  Jameson  and  Engineer  Lesseps  had  been  coeval  with 
the  civil  engineer  of  Syracuse,  "the  great  globe  itself"  might  have  become 
vagrant,  like  the  lost  Pleiad,  for  they  would  have  said  :  "  Assume  your  fulcrum, 
Archimedes;  "  and  the  premises  we  all  occupy,  and  reason  from,  would  have 
been  forced  to  yield  to  the  assumption.  And  why  should  we  not,  in  like  man- 
ner, be  logically  evicted  from  our  houses  or  farms,  some  professor,  engineer, 
or  less  reputable  character,  assuming  the  premises,  and  saying  to  us  — 
"Tamos!" 

But  seriously,  the  professor  has  merely  made  a  bull.  It  would  be  as  sensible 
to  expect,  by  throwing  thirteen  suits  of  clothes  into  a  rag-bag,  to  consolidate 
their  owners  into  a  giant,  equal  to  all  of  them,  as  to  expect  to  make  a  nation 
by  throwing  the  State  constitutions  into  hotchpotch.  The  elements  of  a  nation 
must  be  people,  and  all  our  people  were  States.  It  was  they  (and  not  their 
constitutions  —  or  mere  written  evidences  of  their  will)  that  must  have  been 
put  into  his  vast  brick  machine  (let  us  call  it,  as  hotchpotch  is  rather  vague) 
ground  over,  remoulded,  and  baked  anew,  in  one  stupendous  "  brick  with  all  the 
corners  on."  American  nistory  only  shows  one  other  high-sourced  blunder  as 
amusing.  Another  eminent  Illinois  gentleman,  named  Lincoln,  said  the  union 
made  the  States,  and  gave  them  their  onlv  status  and  rights ! 

Starting  from  such  premises  as  the  above,  the  author  goes  sublimely  but 
logically  along,  through  all  his  550  large  octavo  pages,  never  deigning  to  look 
at  the  being,  "  born  of  poor  but  respectable  parents,  in  1788  (not  1789),  called 
the  federal  government,  together  with  what  Mr.  Stephens  calls  the  res  gesta  — 
probably  meaning  the  things  happening  at  the  gestation.  He  ignores,  or  gives 
no  weight  to,  the  following  facts :  1,  that  the  states  are  named  and  described 
in  the  constitution,  as  New  Hampshire,  Massachusetts,  Connecticut,  New 
York,  et  alii,  without  the  slightest  qualification ;  2,  that  they  became  members 
of  the  Union  without  the  least  imaginable  change ;  3,  that  they  are  called 
States  throughout  the  constitution,  not  in  any  limited  sense,  but  in  the  same 
sense  as  France,  Spain,  and  Russia  are.  [Art.  III.  §  2 :  Amendments  Art. 
XI.];  4,  that  each  colony  was  formed  and  governed  by  herself  till  independ- 
ence, when  she  became  a  complete  body  politic  or  state,  which,  having  no 
superior,  must  have  been  sovereign;  5,  that  George  III.,  at  the  instance  of 
the  American  commissioners  who  negotiated  the  treaty  of  1783  acknowledged 
each  state  to  be  sovereign ;  6,  that  each  declared  or  implied  sovereignty  to  be 
in  herself :  7,  that  all  declared  and  guaranteed  that  each  had  sovereignty,  and 
every  possible  power,  except  what  she  delegated ;  8,  that  this  sovereignty  was 
a  matter  of  essential  character  distinguishing  the  state  from  a  province  or  other 
subdivision  of  a  state  or  nation ;  9,  that  when  the  constitution  was  formed, 
these  States  were  pre-existent,  with  sovereign  characters  solemnly  established, 
and  they  could  but  have  acted  in  such  characters ;  10,  that  the  federal  con- 
vention of  1787,  unanimously  wrote  the  preamble  of  the  constitution  as  fol- 
lows: "We  the  people  of  the  States  of  New  Hampshire,  Massachusetts, 
Connecticut"  etc.,  "do  ordain  this  constitution"  etc.,  and  they  never 


582  REVIEW  OF  STEPHENS  AND  JAMESON. 

changed  their  will ;  but  as  it  was  provided  that  nine  of  the  States  might  make 
the  federation,  and  as  it  could  not  be  foretold  which  of  them  might  accede  to 
it,  the  Committee  on  style  properly  struck  out  the  names,  but  put  in  the  equiv- 
alent expression,  now  in  the  preamble;  11,  that  Article  VII.  provides  "for 
the  establishment  of  this  constitution  between  the  States  so  ratifying  the  same, 
thus  showing  that  the  States,  by  ratifying,  established,  and  alone  became  the 
potential  parties ;  12,  that  the  States  have  the  original  and  absolute  elective 
power,  and  the  exclusive  control  of  the  same  [Art.  I.  §  2,  3 ;  II.  §  1],  and 
that  they  act  severally  in  electing  both  houses  of  congress  and  the  president, 
while  these,  as  their  agents,  appoint  all  other  officers ;  13,  that  there  are  no 
citizens  in  the  federation  but  citizens  of  States  [Art.  III.  §  2 ;  IV.  §  2]  each 
federal  officer  necessarily  remaining  a  citizen  of  a  state,  owing  allegiance  there- 
to, and,  indeed,  being  sworn  to  support  his  state's  "  supreme  law,"  which  the 
'Constitution  is ;  14,  and  finally  that  we  have  no  nation  but  States  —  "  united 
States,"  the  constitution  throughout,  thus  phrasing  the  political  arrangement 
of  1788,  or  calling  it  a  "  union  of  States  "  [Art.  I.  §  2  ;  IV.  §§  3,  4].  These 
facts  destroy  without  remedy,  the  fabric  of  consolidation,  built,  con  amore,  and 
with  such  signal  ability,  by  the  professor.  If  he  had  been  seeking  for  truth, 
and  had  come  to  ruin,  which  could  hardly  be,  we  should  sympathize  with  him; 
but  he  started  with  a  palpably  wrong  theory ;  sought  to  prove  it ;  and,  as 
Carlyle  once  said,  "  mashed  his  face  to  a  pancake  against  the  adamant  of 
things : "  and  we  can  neither  pity  him,  nor  hope  he  will  have  the  face  to  go 
further.  A  nation  is  a  good  thing  to  have,  but  he  must  manage  to  get  along 
with  one  which  absolute  sovereigns  constitute  by  federalizing  themselves,  and 
governing  themselves  jointly.  The  people  might  have  been  one  state,  but  for 
the  stubborn  fact  that  they  were  many.  And  the  consolidation  of  them 
might  have  been  advisable,  but  our  fathers  all  thought  and  acted  con- 
trariwise ;  and  we  protest  against  discarding  their  wisdom,  after  experienc- 
ing for  two  or  three  generations,  and  up  to  1860,  that  "its  ways  are  ways 
of  pleasantness,  and  all  its  paths  are  peace."  It  is  sad  to  Gradgrind  to  death 
a  theory  of  so  much  esthetic  merit,  but  it  is  a  matter  of  absolute  history, 
that  the  raw  materials  of  which  alone  a  nation  could  be  made,  viz. :  the 
people,  the  land,  and  the  political  power,  all  belonged  to  the  then  existent 
and  acting  States  of  New  Hampshire,  Massachusetts,  et  alii,  which  were, 
after  their  federation,  the  self-same  States,  in  every  respect,  that  they  were 
before  —  thus  showing  that  a  nation  or  state  comprising  them  was  a  political 
impossibility. 

Of  the  two  authors,  under  review,  however,  we  must  concede  to  this  one  the 
better  understanding  of  sovereignty,  though  he  makes  a  bad  use  of  his  superior 
knowledge.  He  sees  the  nature  of  it,  but  errs  in  regard  to  its  location ;  while 
Mr.  Stephens,  who  is  correct,  in  the  main,  as  to  its  location,  is  evidently  some- 
what mistaken  concerning  its  nature.  Though  the  tenor  of  his  book,  and  the 
proofs  he  marshals,  make  against  it,  yet  he  seems  now  and  then  to  have  a 
vague  idea  that  the  States  can  be  partly  sovereign  and  partly  subject,  for  he 
quotes  Webster,  as  "fully  admitting  that  the  States  are  sovereign,  except  in  so 
far  as  they  have  delegated  specific  sovereign  powers."  (pp.  398,  403).  Hon. 
Geo.  H.  Pendleton,  in  a  recent  speech  at  Bangor,  said :  "  It  is  a  union  of 
States,  sovereign,  except  in  so  far  as  they  have  delegated,"  etc.  The  N.  Y. 
World  expresses  it,  that  the  States  are  "  not  sovereign,  except  as  to  their  re- 
served rights."  Nearly  all  our  statesmen,  imitating  Story  and  Webster,  use 
the  same  expression,  forgetting  that  "  sovereign  "  and  "  sovereignty  "  are  su- 
perlative in  signification ;  that  divisible  sovereignty  is  a  solecism,  and  is  not 
known  to  publicists  [see  Vattel  and  Lieber];  that  what  they  call  exceptions 
from  sovereignty  are  precisely  identical  with  the  poicers  absolutely  owned  by 
sovereignty,  and  delegated  to  its  agents ;  and  that  it  is  absurd  to  talk  of  sove- 


APPENDIX  H.  583 

reignty  making  an  exception  out  of  sovereignty,  and  thereby  forming  a  sove- 
reignty, which,  if  resisted,  can  coerce  and  destroy  sovereignty. 

Obviously,  the  excepted  sovereignty  must  have  supremacy  and  coercive 
power.  So  we  find  these  gentlemen,  and  the  World,  agreeing  with  Webster, 
m  his  great  speech  of  1833,  that  "  so  far,  State  sovereignty  is  effectually  con- 
trolled;" and  with  Lincoln,  who  said  —  States  are  counties  of  the  nation,  as 
well  as  with  the  Philadelphia  convention,  that  the  "  Government "  "  has  ab- 
solute supremacy,"  and  holds  "  the  States  in  allegiance."  And,  indeed,  they 
can  all  stand  with  Professor  Jameson,  who  concedes  "  that  the  States  are  sove- 
reign, except  in  so  far  as  they "  are  not ;  and  that  so  far  as  they  are  not, 
"  State  sovereignty  is  effectually  controlled  ! " 

It  is  amusing  to  find  the  extreme  advocates  of  antagonistic  theories  occupy- 
ing the  same  ground.  Is  Grant's  prayer  to  be  answered  ?  The  truth  is,  our 
State-rights  men  do  not  clearly  understand  their  own  platform.  They  forget 
that  there  is  nothing  to  distinguish  our  States  from  the  States  or  nations  of 
public  law;  that  the  constitution  makes  no  distinction  between  our  States  and 
"foreign  States,"  but  recognizes  their  sameness  of  character  and  description — 
as  we  have  seen ;  that  the  possession  of  sovereignty  (which,  in  nature,  is  indi- 
visible and  absolute),  is  the  only  thing  that  distinguishes  a  State  or  nation 
from  a  province,  colony,  satrapy,  county,  municipality,  or  other  subdivision  or 
dependence  of  a  State  or  nation ;  that  if  sovereignty  is  out  of  our  States,  they 
are  (and  ought  to  be  called),  united  provinces  or  united  counties,  instead  of 
united  States ;  and,  finally,  that  if  they  are  under  a  sovereignty  that  can  con- 
trol them,  they  have  gone  back  to  where  they  were,  under  Britain,  for  then 
the  will  of  the  political  body  now  called  a  State,  was  dominated  by  an  outside 
sovereignty;  and  taxation  without  representation  of  any  given  State  is  as 
rightful  and  practicable  now  as  it  was  then.  Are  we  united  provinces  or  col- 
onies again  ?  One  of  these  advocates  (the  World,}  happily  affords  us  the  re- 
ductio  ad  absurdum,  by  saying  we  have  a  "  national  sovereignty,"  and  that  the 
States  have  "no  sovereignty,  except  as  to  their  reserved  rights."  It  also  says, 
with  Lincoln,  that  the  only  rights  of  the  States  are  reserved  in  the  constitu- 
tion, by  this  "  national  sovereignty."  Of  course  this  paramount  authority  can 
judge  what  they  are,  and  decide  pro  or  con  as  to  their  continuance.  "  Sove- 
reignty "  must  be  able  to  do  this,  and  enforce  its  decree  !  This  answers  to  the 
very  consolidation  our  fathers  strove  to  avoid.  Having  gone  thus  far,  pari 
passu  with  Mr.  Lincoln,  The  World  should  have  joined  him  in  his  climax.  "/# 
what,  on  principle  is  a  State  better  than  a  county  ?  " 

We  conclude  with  a  few  remarks  on  another  apparent  error  of  Mr.  Stephens. 
He  generally  treats  of  the  States  as  possessing  undivided  sovereignty,  but 
seems  to  concede  that  it  might  have  been,  though  it  was  not,  alienated  or 
divided ;  and,  in  one  place,  he  distinctly  degrades  it  to  a  power,  or  the  sum  of 
powers,  that  could  be  surrendered  or  reserved.  Was  not  sovereignty,  says 
he,  "  most  clearly  retained  and  reserved  to  the  people  of  the  several  states,  in 
that  mass  of  residuary  rights,  .  .  .  which  was  clearly  reserved  in  the  con- 
stitution itself  ?  It  is  true,  it  was  not  so  expressly  reserved  in  the  constitution 
at  first,  because  it  was  deemed  .  .  .  wholly  unnecessary.  .  .  .  But  to  quiet 
the  apprehensions  of  Patrick  Henry,  Samuel  Adams,  and  the  Conventions  of  a 
majority  of  the  States,  this  reservation  of  sovereignty,  was  soon  after  put  in 
the  constitution."  And  to  prove  that  this  sovereignty  was  reserved  in  the 
constitution,  to  the  States,  ne  quotes  the  amendment,  declaring  that  "the 
powers  not  delegated  ...  are  reserved  to  the  States."  [p.  489,  et  seq.] 

Sovereignty,  which  is  thus  grossly  degraded,  can  be  nothing  less  than  the 
life  and  soul  of  the  State,  in  point  of  importance.  It  is  an  essential  character- 
istic, and  is  neither  the  subject  nor  the  result  of  any  acknowledgment,  agree- 
ment, guaranty  or  reservation;  but  when  in  the  war  for  independence,  the 


584 


REVIEW   OF   STEPHENS  AND  JAMESON. 


force  of  the  colonies  prevailed,  sovereignty  came  to  exist  in  each  of  them  as  a 
new-bora  soul  —  an  adamantine,  eternal  fact,  which  the  words  of  George  III.  or 
the  federated  States  no  more  produced,  than  their  confession  could  have  pro- 
duced Truth  or  God  !  The  most  of  our  statesmen  seem  unable  to  distinguish 
between  "sovereignty"  and  its  "powers."  It  is  evident  that  these  are  no 
part  of  sovereignty,  for  all  possible  "  powers "  of  government  may  be  dele- 
gated, and  sovereignty  remain  intact.  Sovereignty  and  ownership  are  suffi- 
ciently analogous  for  the  latter  to  throw  light  on  the  former.  One  who  has 
ownership,  has  the  absolute  right  of  control  and  disposal — the  jus  disponendi. 
This  includes  all  the  powers  required  for  its  exercise.  If  the  owner  delegate 
"  powers "  to  manage,  improve,  repair,  rent,  lease,  mortgage,  or  sell,  his 
ownership  remains  intact,  and  the  agent  neither  has,  nor  exercises  it.  So  with 
sovereignty  :  it  is,  so  to  speak,  the  ownership  of  all  persons  and  things  subject 
to  it,  or  it  is  like  an  owner's  dominion  over  them ;  and  after  delegating  a 
thousand  "  powers,"  (of  government,  etc.)  it  is  undiminished.  England  has  a 
myriad  of  agents,  with  "  powers,"  in  every  part  of  the  globe,  while  her  sove- 
reignty is  always  at  home.  Sovereignty  sent,  but  did  not  accompany,  the  vic- 
torious armies  of  the  Crimea.  So  in  our  country  sovereignty  sends  "  substi- 
utes  and  agents  "  with  "  powers  "  to  govern,  but  remains  quietly  at  home.  That 
the  general  "  government "  has  only  "  powers,"  the  constitution  everywhere 
shows.  Is  it  wrong  then  to  say  that  sovereignty  is  the  soul  of  a  State  r*  This 
political  body  was  the  only  fit  receptacle  for  such  soul,  and  the  solemn  record 
shows  that  it  did  enter  and  dwell  therein.  The  two  were  vitally  joined.  Have 
they  been  put  asunder  ?  If  yea,  when  ? 

Finally,  it  seems  to  us  to  be  unquestionable,  that  our  States  are  absolutely 
sovereign  republics ;  only  self-bound  in  a  purely  voluntary  association,  which  is 
solely  motived  by  amity  and  mutual  interest ;  and  that  the  federal  contrivance 
is  their  instrumentality  for  self-government  and  self-protection  —  is  their  crea- 
tion —  lives  solely  with  their  life,  and  acts  solely  with  their  powers  —  and  must 
ever  be  subject  to  their  "supreme  law,"  and,  a  fortiori  to  themselves. 


INDEX. 


A. 

ABSOLUTE  SUPREMACY.  Claim  of,  by  the 
General  Government,  5,  6,  12,  17-19,  53, 
54,  215,  298,  300,  384. 

Leaves  but  the  mere  forms  of  institutional 
freedom,  258. 

Dicta  of  its  assertors,  295,  296,  300-313,  360, 
368. 

Formula  according   to     the  "  school,"    297 
[  Diagram}. 

Those  who  make  the  claim,  298,  303,  368. 

Means  a  corporate  king  over  re-provincialized 
States,  215,  298,  299. 

Enslavement  of  the  States  under  color  of, 
300, 361. 

The  claim  of,  unconstitutional  and  treason- 
able, 379 

ADAMS,  J.  Q.  Fallacy  respecting  the  Declar- 
ation of  Independence,  290,  291. 

The  people  retain  the  dissolving  as  well  as 
the  constituent  power,  330. 

The  true  tie  of  union,  427,  430. 

States  have  the  right  to  secede,  330. 
ADAMS,   SAMUEL.     "  Sovereign  authority  of 
the  States,"  35,  378. 

Palladium  of  the  citizen's  rights,  id.,  id. 

Union    composed    of   sovereignties,  46,   79, 
368. 

Fears  losing  State  sovereignty  —  Letter  to  R. 
H.  Lee,  85,  378. 

Accepts  Gov.  Hancock's  "conciliatory  propo- 
sitions, 86,  377. 

Says  amendment  X.  secures  State  sovereign- 
ty, 46,  86, 135. 

Distinction  between  Federal  powers  and  sov- 
ereignty of  the  States,  87,  135,  378. 

Importance    of   the  constitutional    amend- 
ments, 87,  378. 

Consolidation     reprobated    by     the  highest 

advocates  of  the  constitution,  378. 
AGENTS  AND   TRUSTEES.      The  state  and 
Federal   governments,   9-11,  37,  285,311, 
312,  374  (note). 

Agents  and  depositories,  all  governments,  10, 
11,  63,  64,  329. 

Agents,  substitutes,  and  servants,  9-12,  61, 

63,286. 

ALLEGIANCE.  The  State  the  only  object  of, 
34,  35,  339,  394,  398  et  seq 

Due  to  society  or  State,  50,  339,  402,  414. 

Social  compact  the  tie  of,  59,  339,  352, 357, 
400,  402. 

Voluntary  in  a  republic,  281, 282. 

States  not  in,  299,  326. 


ALLEGIANCE  —  continued. 
To  a  national  government  not  provided  for ; 

that  to  the  State  never  transferred,  56, 397, 

400  et  seq. 

Due  by  each  to  all,  352. 
Claim  of,  by  the  general  government,  false. 

56,  57,  398,  399. 
Declarations  and  claims  of,   only  by  States, 

56,400. 

Testimony  of  the  States,  61-64,  400,  401. 
The  oath  to  support  the  Federal  and  State 

Constitutions,  400,  401. 
Obligations  of  Federal  officials,  401,  402. 
An  essential  and  anti-constitutional  right  of 

the  States,  401. 

And  protection,  56,  414.      Testimony  of  Vir- 
ginia, 415,  416. 
Transfer  of,  a  dissolution  of  the   State,   66, 

416,  417. 

Voice  of  the  old  Bay  State,  417,  418. 
Conclusive  proof:   Pennsylvania,  281,  282  : 

Vermont,   282,    418,  419;    Massachusetts, 

282,  283  ;  Kentucky,  419. 
Articles  of  the  early  faith,  34,  35,  419,  420. 
What  the  faith  rests  upon,  421. 
AMEND.     States  alone  have  the  right,  57,  141, 

152,325,375,379. 
What  the  right  necessitates,  57, 152,  286, 325, 

326. 
Right  to,  involves  right  to  abolish,  286,  325, 

326. 

Is  exercised  functionally,  286,  328. 
AMENDMENTS.      The  10th  equivalent  to  2d 

Article  first  Federal  Constitution,  46,  86. 
The  10th,  proposed  by  Massachusetts,  86,  87, 

377. 
Scope    and  effect    of  this    amendment,    id. 

377-379. 
The  "  conciliatory  propositions  "  of  the  fed- 

eralizers,  86,  377. 
Their  adoption  by  States  provided  for  in  the 

Constitution,  152,  325,  326. 
A  view  of  the  early  and  later,  326,  327. 
Status  and  action  of  the  States  therein,  326- 

328. 
What  amendment  X.  imports  of  the  States 

and  the  Federal  polity,  311, 378. 
Substance  and  aim  of  amendments  IX.,  X., 

XL,  378,  379. 
The  llth,  and  the  agitation  which  led  to  its 

adoption,  386,  387. 
AMES,   FISHER.     Questions  of  patriotism  and 

honor  above  reason,  34. 
Union  composed  of  sovereignties,  47,  376, 

377. 


586 


INDEX. 


AMES,  FISHER  —  continued. 

Denounces  aud  denies  consolidation,  81, 82,  id. 

State  governments  essential  parts  of  the  sys- 
tem. Senate  represents  sovereign  States, 
id. ,  id. 

Beautiful  illustration  of  the  purpose  of  the 
Union,  311 

State    governments  a    shelter    against  the 

abuse  of  power,  391. 

AUGUSTUS    CAESAR.       His    character  as  a 
ruler,  19. 

The  imperial  system,  19,  20. 

Absolutism  under  forms  of  Commonwealth. 

20. 

AUTHORITY.       Sovereign,  of  the  State  the 
palladium  of  personal  rights,  35,  378. 

How  manifested  in  our  republican  govern- 
ment, 294,  295  (Illustration). 

Grades  and  impartations  of,  as  contemplated, 
296,  297  (Illustration),  365,366. 

Grades  of,  according  to  "  the  school,"  297 
(Illustration). 

Grades  of  State  and  Federal,  300,  301  (Illus- 
tration). 

States  the  source  of  all,  29,301,  302  [Dia- 
gram], 

Exposition  and  summary  as  to  grades,  303, 
304. 

Highest  of  all  human,  329. 

Of  the  general  government,  delegative  and 
ministerial,  369. 

The  fathers  aimed  to  guard  against  a  danger- 
ous increase  of  Federal,  373. 


B. 

BARLOW,  JOEL.    "  Consoling  principles  "  of 

our  Constitutions,  347, 348. 
The  aim  was  to  federalize,  77. 
BENTHAM  JEREMY.     Of  writing  on  law,  53 

(note). 
The  influence  of  a  great  name  in  teaching  or 

misteaching,  54. 

BILL  OF   RIGHTS.    Amendment  X.,a  sum- 
mary of,  86,  389. 
Not  needed  in  the  Federal  Constitution,  237, 

245. 

Definition  of,  266. 
BLACK,  JUDGE  J.  S.    As  to  the  14th  party 

to  the  compact,  259,  260. 
As  to  source  of  the  right  of  trial  by  jury, 

265. 

BLACKSTONE,   JUSTICE.     The  social  com- 
pact, 65,  284. 

Jura  summi  imperil  in  the  people,  309. 
BOWDOIN,  GOV.  JAS.     The  States  sovereign, 

48,  368. 

The  new  system  a  confederacy,  81,  368. 
All  power  is  from  the  people,  84. 
States  empower,  id. 

BREARLY,  D.     Advocate  of  federation,  97. 
"  BROKEN   CONDITIONS."     A  dissolution  of 

the  engagements,  208. 
The  State  the  judge  of,  356,  357,  409. 
BROOKS,    GEN.    Opposed    to    consolidation, 

80. 

BROUGHAM,   LORD.     On  the  American  Con- 
stitution, 332. 

It  clearly  forms  "  a  federacy  of  States,"  id. 
BUCHANAN,    PRES.      Divine   origin  of  the 

government,  18. 

"  Essential  attribute  of  perpetuity,"  id. 
BURKE.     Perversion  of  popular  magistracies, 

7,19,69,333,431. 
The  ties  of  union,  67. 
Society  a  compact,  285. 
Theory  of  the  republic,  291. 


c. 

CABOT,  GEORGE.     The  union  of  sovereign 

States,  48. 

Consolidation  of  the  States  inadmissible,  81. 
Sovereignty  of  the  States  represented  by  the 

Senate,  id. 

CALHOUN,  JOHN   C.     Resolution    declaring 
character  of  the  Union,  U.  S.  Senate,  204, 

CASS    GEN.   LEWIS.     And    squatter  sover- 
eignty, 322. 
CHANGE.       From  agency   to  sovereignty  by 

perversion,  Burke,  7,  19,  69,  333,  431. 
From  the  first  to  the  second  Federal  Consti- 
tution, 75,  76. 

By  usurpation  threatens  us,  334. 
The  alleged,  from  federation  to  another  sys- 
tem, 42  et  seq.,  144,  145, 185,  186. 
CHARGES.     "Expoundings"   identical   with, 

16,  159. 

Comparison  of,  and  "expoundings,"  159  et 

seq. 
"CHECKS  AND  BALANCES."      Our  system 

one  of,  13, 144, 145  (Illustration),  363. 
How  provided  for,  363. 
CITIZENS.    Citizen.  Collectively  are  the  State, 

28,  394,  397  et  seq. 

Govern  and  are  governed,  28,  29,  282,  295 

[Diagram], 
Parties  to  the  social  compact,  id.,  281    et 

seq.,  363,  402. 
Dual  capacity,  28,  295. 
Endowed  with  suffrage  by  the  community, 

17,  29. 

As  members  of  the  political  community,  28, 

29,  56,  283,  329,  409,  410. 

One  cannot  commit  treason  in  obeying  the 

will  of  his  State,  2G  et  seq.,  394,  402. 
Why  subject  to  the  Federal  compact,  29,  30, 

56, 125, 196, 197, 292, 394,  395, 414, 415, 424. 
All  are  members  and  subjects  of  States,  30, 

56, 151,  296,  410. 
Allegiance  of  each  is  to  his  State,  30,  56, 363, 

394,397,  et  seq.,  408,  409. 
Are  subjected  to  the  Federal  judiciary  by  their 

States,  150, 151. 

As  sharers  of  sovereignty,  60,  151.  244,  378. 
Obligations    of.  rest  on    voluntary    engage- 
ments, 281-284, 292. 

Supreme  Court  ignores  dual  capacity  of,  296. 
The   State    the    palladium  of    his   personal 

rights,  35, 378. 

Legal  and  political  duties  of,  380,  381. 
One  in  defending  his  State  defends  him?elf, 

408  et  seq. 

Each  one  an   integral  part  of  his  own  Com- 
monwealth, 397,  399,  409. 
The  tie  that  binds  the,  to  obey,  424. 
CITIZENSHIP.    Averments  of  facts  as  to,  and 

allegiance,  56. 
The  transfer  of  would  dissolve  the  State,  56, 

397,416,417. 
Delegating  of  powers  not  a  transfer  of,  310, 

311,402,416,417. 

President  Jackson's  mistake,  id.,  id.,  id. 
The  only,  is  of  States,  56,  (note,  p.  151),  394, 

39 1 . 
Of  a  national  government  never  provided  for, 

397,  410,  411,  416. 
Of  States  never  transferred,  id.,  id. 
The  "  uniform  rule  of  naturalization,"  398, 

399. 
Congress'    assumption   of  the    naturalizing 

authority,  id. 

Testimony  of  the  States,  399,  400. 
The  official  oath  required  by  the  States,  401, 

402. 


INDEX. 


587 


CITIZENSHIP  —  continued. 

Massachusetts'  declaration,  417,  418. 
Vermont  aud  Kentucky  testify,  418,  419. 
Conclusions.  41'J,  42U. 
CLINTON,   GEORGE.     Letter  explaining  the 

ratification  of  New  York,  94. 
COERCION.     No  constitutional  authority  for, 

against  States,  23.  177,  178,  19(5,  197. 
The  only  basis  of,  23,  24. 
Of  States  rightful  under  the  jus  gentium,  24 

et  seq. 
Not  inconsistent  with  the  Constitution,  25, 

26. 
Of  citizens,  the  aim  of  the  Commonwealths, 

29,  30,  261,  262,  403. 
Of  States  excluded  from  the  system,  177,  178, 

196,  197,  299,  373,  375,  378, 379  et  seq  ,  387. 
Of  States  held  inconsistent  with  the  plan  of 

federation,  178,  200,  201,  (note,  Reserved 

Powers,  200),  384. 

Why  kept  out  of  the  Constitution,  299. 
Of  States  with  arms ;  or  by  legislation  ,  or 

even  judicially,  prohibited,  261,  262,  382 

et  seq. 

The  question,  in  the  Federal  convention,  id. 
Federal,  of  citizens,  agreed  upon,  382,  385. 
What  the  fathers  say ,  383,  384. 
Of  a  State  is  war,  384,  385. 
By  the  general   government  is  treasonable, 

384,  387. 
To  avoid,  of   States,  the  great  aim  of  the 

fathers,  385. 
Crowning  proof,  id. 
Even  judicial,  of  States  not  intended,  261,262, 

385-3S7. 
The  agitation  which  led  to  the  adoption  of 

the  llth  amendment,  386,  387. 
A  State's  free  will  survives  her  making  of  the 

union,  387. 

Summary  aud  conclusions,  id. 
COLONIES.     Political  character  of  the  Ameri- 
can, 3  et  seq. 
Their  individuality,  id. 
Their  change   to  States   by  the  Revolution, 

id.,  73  e.t  seq.,  276-278. 

How  distinguished  from  a  State,  1,  292,  332. 
Different  forms  of  polity,  350. 
Their  separateness    and  individuality,  349- 

351. 

As  rising  States,  350. 
Associate  to  gain  independence,  4,  276. 
Independence  makes,  sovereign  States  of,  4, 

278,  288,  289,  328,  329. 
George  III.  acknowledged    them  sovereign 

States,  4,  329. 
Their   union  for    independence ;    impelling 

causes,  351. 
COMMONWEALTH.   Attacked  by  her  own  and 

her  sisters'  subjects,  34. 
Synonymous  with  State,  "independent  body 

politic,"  63,  64,  202,  2\)3. 
The  absolute  existence  of  the  American,  67. 
Let  us  preserve   these  citadels  of  liberty,  68, 

69,  223,  265,  266. 

They  ratified  and  gave   the  government  ex- 
istence, 144,  145,  170,  183, 184. 
The  union  an  association  of  Commonwealths, 

145, 157,  347. 
They  are  the  source  of  all  power,  144, 145, 

297  [Diagram], 
Their  distributed  powers,  181. 
Growth  of  an  American,  275  et  seq. 
Distinction  of,  from  a  league  of  States,  274, 

2  j •),  282. 

As  a  sovereign,  278,  282,  283. 
Political  sovereignty  of,  294,  295. 
Increase  of  the  American  Commonwealths ; 

their  autonomy,  347. 


COMMONWEALTH  -  continued. 

Subjugation  of,  297. 

Self-organized  and  self-governing,  301,    302 
[Diagram]. 

Agents  of  each  and  all  jointly  compose  the 
government,  id.,  id. 

Repository  and  distribution  of  powers,  310, 
311  [Illustration]. 

The  organized,  sovereign  people,  322,  323. 
COMMUNITY.     Sovereignty  of,  not  impaired, 
by  the  delegating  of  powers,  281. 

vs.  Government ;   historical  illustrations  of 
distinctions  between,  288,  289. 

Existence  of  former  not  involved  in  a  change 
of  the  latter,  289,  290. 

Obligations  to  the,  rest  on  voluntary  engage- 
ments, 292. 

COMMUNITIES.  The  people  as  sovereign  [Il- 
lustration] 297. 

Sovereign  political(c.)in  convention  of,  1787, 

With  absolute  control  of  their  condition,  328, 

329. 

"COMPACT,  CONSTITUTIONAL."  Webs- 
ter's strictures  on  Calhoun's  resolution, 
204. 

"Compact"  and  "accede"  are  correct,  204, 
205. 

The  language  of  the  fathers,  205,  206,  207. 

Mr.  Webster's  later  admissions,  207  et  seq. 
COMPACT,   FEDERAL.  —  Political   bodies  or 
States  form  federation  by,  22,  57,  124,  125, 
136,  137  et  seq.,  140. 

Obligations  of,  on  citizens,  29,  30,  57,  125, 
382,  383,  385. 

Declares  citizens  remained  citizens  of  different 
States,  29,  30,  151,  296,  397. 

Only  possible  result  was  a,  137. 

Nine  parties  established,  124. 

And  the  compact  of  Confederation,  144,  145, 
152, 153. 

States  the  only  parties  to,  153,  154,  155. 

Is  hidden  by  a  simulacrum,  162. 

Ordinances  of  ratification  prove  the  establish- 
ment of  a,  167,  168. 

Required  States  to  ordain,  153, 169, 170. 

The  general  government  not  a  party  to,  193, 
259,  260,  364. 

Testimony  of  the  Fathers  on,  202.  203,  204  et 
seq.,  282. 

The  alleged  sectional  equilibrium  and,  208, 
209,  263. 

Was  not  a  second  social  compact,  288  et  seq. 

Sphere  of,  358,  359. 

Coercion  of  the  States  a  dissolution  of,  383. 

No  claim  of  allegiance  in,  397,  400. 

Shows  the  State  to  be  the  only  object  of  trea- 
son and  citizenship,  414. 

COMPACT,  SOCIAL.  Imported  theory  of,  18, 
19. 

State  formed  by,  22,  28,  29,  278  et  seq.,  339, 
394,409,410. 

Sole  cohesive  force  of  a  republic,  56,  266. 

Reciprocal  obligations  under  the,  56,  352,  357. 

The  only  tie  of  allegiance,  56,  339,  400. 

Testimony  of  Massachusetts,  60,  61,  282,  283. 

The  fallacy  of  a  second,  126,  127,  288  et  seq. 

Is  the  organic  law  of  the  society,  266,  288. 

Not  necessarily  mentioned  in  Constitutions, 
266. 

As  exhibited  in  Pennsylvania,  281  et  seq. 

Rationale  and  elements,  283  et  seq. 

Vattel  and  authorities,  284,  285. 

Fallacy  of  Story  and  others,  288  et  seq. 

And   the  Declaration   of  Independence,  290, 
291.    (Note  on  "  The  School.'') 

Hume's  alleged  explosion  of  (note,  p.  18), 
291. 

Is  the  germinal  idea  of  the  republic,  292. 


588 


INDEX. 


COMPACT,  SOCIAL—  continued. 
The  duties  essential  to,  56,  56  (Averment  of 

Facts),  357. 
CONFEDERACY.     Our  association  of  States, 

testimony  of  the  fathers,  42-48,  80-82,  205- 

207,  229,  230. 

The  Union  necessarily  a,  48,  49,  136,  156. 
Sovereignties  may  unite  in  a,  298,  332,  347. 
Mutual  relations  of  members :   as  an  inde- 
pendent power,  347. 
CONGRESS.     The  powers  of,  the  result  of  a 

compact,  10  et  stq  ,  149,  150. 
The  Continental,  declares  the  new  federaliz- 

ing  instrument  complete,  126,  127,  364. 
Provides  for  carrying  it  into  effect,  id.  382. 
Members  of,  are  citizens  and  subjects  of  their 

respective  States,  149. 
Legislative  powers  of,  149,  150. 
Both  Houses  of,  elected  by,  and  do  represent 

States,  150. 
The  House  of  Representatives  not  national, 

149,  150,  176,  179,  180. 
Is  to  propose  amendments,  152. 
Is  a,  of  States,  not  of  the  people  at  large,  179, 

180. 
A  diplomatic  as  well  as  a  legislative  body, 

180,  238. 

And  the  power  to  admit  new  States,  354. 
CONNECTICUT.    Federalizes  herself,  89  et  seq. 
Date  of  ratification,  89. 
Vote  on  ordinance,  id. 
Her  leading  statesmen  on  the  proposed  union, 

89,90. 

"  \Ve  the  people,"  means,  90,  91. 
Ratifying  and  ordaining  words,  id. 
Declares  acts  of  Congress  in  violation  of  the 

Constitution  void,  380. 

CONSENT.    The  phrase  "consent  of  the  peo- 
ple," and  self-rule,  348. 
In   republican  government  means  "will  of 

the  people,'1  271  [Motto]. 
Of  the  States  to  the  Constitution,  172  et  seq. 
Of  the  governed,  264,  291,  292,  294. 
CONSERVATIVE    ERRORS.     The  study  our 

rlity  demands,  255. 
REPUBLICAN    FORM  OF   GOVERN- 
MENT." 

Meaning  according  to  the  fathers,  255  et  s*q 

Can  but  mean  a  republic  in  fact,  255-257, 
359. 

Errors  in  exposition,  256. 

"  THE  14th  PARTY  TO  THE  COMPACT." 
The  general  government  erroneously  al- 
leged to  be,  259,  260. 

The  real  14th  party  is  "  the  United  States," 
260. 

"NULLIFICATION."  First  appearance  of 
this  error,  260,  261. 

South  Carolina's  false  position,  261,  262. 

The  proclamation  of  force  a  blunder,  261. 

Mr.  Webster's  assumption  and  avoidance, 
261,  262. 

Distinction  between  nullification  and  seces- 
sion, 262. 

"THE  LOST  PRINCIPLE."  Sections,  or 
groups  of  States,  also  parties  to  the  com- 
pact, 263,  264. 

The  idea  of  a  compact  of  sectional  equilibri- 
um inadmissible,  209, 263. 

"  THE  CONSENT  OF  THE  GOVERNED." 
In  a  republic  the  proper  word  is  will,  264. 

"  THE  WILL  OF  THE  MAJORITY  RULES." 
Fallacy  of  the  saying,  264,  265. 

Parties  govern  and  tend  to  destroy  liberty, 
iff. 

"THE  CHARTER  OF  OUR  LIBERTIES." 
The  understanding  then  and  now,  265, 


CONSERVATIVE  ERRORS  -  continued. 

SOCIAL  COMPACT.  CONSTITUTION 
BILL  OF  RIGHTS.  Defined  and  discrim- 
inated, 266. 

THE  GROWTH  AND  DEVELOPMENT 
THEORY,  266,  267. 

SECESSION.  A  right  within  the  law  of  self- 
preservation,  267,  268. 

Its  surrender  indefensible,  268. 

The  right  should  be  admitted,  id. 

The  late,  and  its  teachings,  268,  269. 
CONSOLIDATION.      Excludes    the    idea    of 
Union,  46. 

No  evidence  of,  of  the  States,  58,  145  156 
169,  172, 180. 

Repudiated  by  all  in  Massachusetts,  80-82, 
378. 

Mr.  Dench  and  Gen.  Brooks  on,  80. 

Gov.  Bowdoin,  Sumner,  Parsons,  Sedgwick 
Dana,  &c  on,  81,  82. 

Fisher  Ames  s  strong  assurances ,  id. ,  376, 377. 

Distinction  between,  of  States  and,  of  the 
Union,  81,  109,  110. 

Pleas  and  assurances  of  the  Federalists,  82, 
85-87,  107-110,  376,  377. 

The  amendments  guarding  against,  85,  86, 
377-379. 

The  amendment  respecting  delegated  and 
reserved  powers,  85,  86,  377. 

Importance  of  the  amendments,  86,  87,  378, 
379. 

Possibility  of,  under  the  new  government 
strongly  urged,  107,  159,  376,  377  et  stq 

What  was  understood  by  the  charge,  109, 110. 

Virginia  and  New  Hampshire  second  Massa- 
chusetts in  demanding  guaranties  against, 

Pith  of  the  doctrine  of,  142, 143. 

Did  the  American  people  really  adopt,  163, 

Problems  for  the  supporters  of,  285,  286. 
Their  dilemma,  292,  2S;3,  368-370. 
Unheeded  form  of,  the  worst,  363. 
The  idea    emphatically   disowned    and    de- 
nounced, 376  et  seq. ,  378. 
Would  have  been  a  fatal  objection  to  the  new 

government.  377. 
Grand  result  of   the  movement  against,  — 

adoption  of  amendments  IX.,  X.,XL,  378. 
Obvious  import  of  Amendment  X.,  379. 
CONSTITUTION,  THE.    Provides  for  a  union 

of  States,  4,  5,  124,  136  el  seq. 
The  "  Expounders "  have  made  a  spurious, 

16,  78,  124,  162. 
False  charges  adopted  as  expoundings  of,  id., 

id.,  id.,  159  et  seq. 
No  coercive  power  over  States  in,  23, 178, 196, 

197,  201. 
Settles   pro    tanto    international    questions 

among  States,  23,  24,  377. 
Evidences  a  federation  of  sovereignties,  42 

et  seq.,  136, 137,  140-142,  148, 149,  240. 
It  fully  recognizes  States,  45,  46, 125, 137, 140, 

141, 147,  148,  325,  S67. 
Not  the,  but  the  States  "reserved,"  53,  54, 

169,  181. 
Recognizes  citizens  as  of  States.  56,  143,  151, 

288,  296. 
The  wills  that  made  it  survived,  57,  58,  73, 

75, 147, 152,  256,  357. 
Itself  provides  for  its  amendment  by  States, 

trf.,64,  147,152,  325. 
Is  law  in  a  State  by  her  will,  64,  77,  120,  154, 

aS7. 

And  the  Social  Compact ;  Expounders'  sub- 
terfuge, 64,  65,  127,  388,  389. 
Is  the  delegating  of  an  extensive  trust,  75, 

125,  311,  390. 


INDEX. 


589 


CONSTITUTION,  THE  -  continued. 

Ordained  by  States  in  their  respective  con- 
ventions, "77,  136,  137  ft  seq.  185,189,  190, 
296,  300,  357,  364,  413. 

The  federal,  is  an  addition  to  a  State's,  id. 

Ratification  alone  vitalized  it,  id..  137,  140, 
143,  154,  168,  184,  256. 

As  "  the  supreme  law,"  78, 120, 137, 141, 142, 

143,  152,  153,  181,  182,  194,  195. 

States  the  only  parties  to,  124,  125,  136,  137, 
140,  153,  263,  279,  280. 

The  "  national,''  of  the  consolidationists,  121, 
122,  132,  ia3,  290,  298,  299,  313.  ' 

Was  a  mere  proposal  of  the  convention  to 
States,  137,  141-143,  223,  225. 

Is  a  league  or  compact,  137, 140, 141, 166,  202. 

Is  a  fundamental  law,  137,  256,  257,  289,  302. 

Is  a  constitution  of  a  governmental  agency, 
265,  288,  289,  292,  293. 

Or  "  Deed"  as  executed,  138-140,  154. 

The  alleged  "  done  in  convention  "  adden- 
dum, 142, 143,  154, 155, 172,  173. 

Exposure  of  this  deceptive  presentation,  143, 

144,  153,  154. 

The  true  presentation,  137,  138,  139,154 
Testimony  of,  as  to  sovereignty,  the  Govern- 
ment, the  States,  and  the  Union,  147  etseq. 
Shows  a  union  of  distinct  commonwealths, 

each  sovereign,  148. 
And  the  Confederation,  144,  [Diagram]  152, 

153,  199,  200-202. 
Is  not  a  Government,  153. 
No  evidence  that  a  nation  ordained,  id.,  155, 

156,  168,  172,  178, 179. 
A  complete  idea  of,  140,  154. 
Contains  only  delegated  powers,  155, 172,191, 

305,  312,  316,  317,  324,  363,  364. 
The  only  legitimate  theory  of,  155, 156. 
What  the  perversion  of,  has  wrought,  162. 
Motives  for  the  perversion,  164,  184. 
Is  a  compact  and  law,  166. 
Ratifying  alone  established,  168,  169,  172, 

184,  185,  256. 
Does  not  of  itself  prove  its  authority,  154, 

168, 171, 172. 
Was  never  voted  on  by  the  people  directly, 

170. 
The  signatures  to    merely  authenticate  the 

instrument,  171,  172. 
Is  the  law  of  the  Government's  being,  172, 

265,  288,  289. 

The  States  are  named  in,  174,  175. 
Is  not  a  law  over  the  States,  176,  178,  196, 

Federal  in  its  establishment,  pro  tanto  na- 
tional in  operation.  178,  179, 196,  197. 

Is  necessarily  a  federalizing  instrument,  184. 

"National"  word  and  idea  stricken  from 
plan  of,  200. 

Aims  not  at  State  coercion,  201,  384. 

"  Constitutional  compact."  Criticism  of  Mr. 
UYlister's  criticism,  204  et  seq. 

Does  not  contain  the  word  "  sovereignty  "  — 
said  Mr.  Lincoln,  216,  217. 

The  true  and  the  false  construction  of  the 
language  of,  253,  254. 

Meaning  of  the  guaranty  clause  of,  151,  256, 
257,359 

'•  The  great  constitutional  charter"  —earlier 
and  later  acceptation,  id.  265. 

A  constitution  of  Government,  definition,  266. 

How  the,  relates  to  the  sovereignty  and  the 
Government,  289. 

The  clause  providing  for  the  admission  of 
new  States,  151,  152,  354. 

Is  subject  to  the  will  of  the  people,  303,  329. 

States  not  subject  to,  325,  326,  382. 

Aim  of  the  fathers  in  making,  359,  360. 


CONSTITUTION,  THE  —  continued. 
Federal  usurpations  violate,  376,  391,  392. 
Leaves  the  States  to  provide  for  their  own  ex- 

istence, 392,  393. 
Proves  the  State  the  sole  object  of  treason, 

394,  413  et  seq. 
CONVENTION  OF  '87.     Held  States  the  par- 

ties to  the  establishing  of  the  Constitution, 

125,  126. 
Members  were  citizens  and  agents  of  States, 

id* 
Said  the  new  system  was  "  the  Federal  govern- 

ment of  these  States,  id.,  202,  274,  294. 
Said  the  making  of  the  Constitution  was  the 

"  delegating  "  of  an  "  extensive  trust,"  125. 
Merely  framed  the  plan  and  submitted  it  to 

the  States,  140,  205,  225. 
Character  and  work  of,  154,  155,  172,  173, 

184. 
The  signatures  simply  authenticate  and  re- 

commend the  instrument,  171,  172,  173. 
Did  not  represent  a  nation,  173,  174. 
The  resolutions  laid  before,  and  action  there- 

on, 197  et  seq. 
The  States'  instructions  to  the  deputies,  198, 

198. 

The  aim  was  to  federate,  199. 
Eliminated  "  national"  from  the  system,  200. 
Unanimously  rejected  proposal   of  veto  on 

State  laws,  200,  201. 
Action  on  the  preamble,  201,  202. 
Adopted  a  compact  of  Federal  government, 

201-203. 
"  United  States  "  means  the  people  as  States, 

294. 
Was  a  voluntary  assemblage  of  equal  sove- 

reign States,  328. 
On  the  mode  of  enforcing  Federal  jurisdic- 

tion, 382  et  seq. 
CONVENTION,  STATE.    Authority  and  pow- 

er of  the  secession  conventions.  36,  37. 
Is  the  immediate  representative  of  sovereign- 

ty, 261. 

And  ratification,  140. 
The  ratifying  conventions,  their  action  and 

powers,  id.,  154,  155,  301,  302. 
"CONVICTIONS,   PUBLIC."     The,   wrought 

by    Webster,    and   consequences,  52,  57, 

165. 
Curtis's  presentation  of  Webster's  claim,  165, 

166. 

Strengthening  the,  174,  178,  188  (note,  p.  186). 
COXE,    TENCH.      Constitution    adopted    by 

States,  46. 

Union  excludes  the  idea  of  consolidation,  id. 
The  Union  was  of  sovereignties  in  a  confed- 

eracy, irf.,367,  368. 
The  Constitution  a  contract  among  sovereign 

States,  238. 

Question  with  the  confederating  States,  282. 
Distinction  between  Commonwealth  and  con- 

federacy, id. 
CURTIS,  G.  T.     Present   principal    of    the 

"  Massachusetts  School,"  50,  51. 
Merely  repeats  and  amplifies,  52. 
Fallacy  of  a  second  social  comp 

174,  288^5^.,  200. 
Authorities  he  does  not  quote  from,  88. 
Congress  the  final  judge  of  its  constitutional 

powers,  161. 

What  he  claims  for  Webster,  165,  166. 
And  the  ordinances  of  ratification,  170,  183, 

188  rt  seq. 

Garbling  the  ratifications,  183. 
Ratification    a  deed,  not  an  ordinanca,  188, 

189,  190. 
Shows     himself     conspicuously     unreliable 

herein,  190,  191. 


compact,  64,  173, 


590 


INDEX. 


CURTIS,  G.  T.—  continued 

Queer  doctrine  of  the  "  irrevocable  grants  of 
political  sovereignty,"  191,  Iy2,  316. 

The  same  shown  to  be  baseless,  unhistorical, 
illogical,  192,  193,  317. 

Attempts  to  explain  away  Webster's  "  con- 
stitutional compact,"  208,  209. 

Notion  of  a  sectional  equilibrium,  i'rf.,263, 
264. 

Sovereign  authority  of  a  State  the  highest  of 
all  human,  275,  328,  329. 

The  nation  form  a  second  social  compact, 
280,  288  et  seq.,  302,  311, 312. 

Substance  of  his  contention,  290. 

The  general  government  final  judge  as  to  its 
own  powers,  293, 368. 

"  Political  sovereignty  "  set  forth  ;  Sovereign 
powers  divisible  ;  States  put  a  part  of  their 
sovereignty  in  the  Constitution,  192,  193, 
316. 

"Granted  irrevocably,"  —  unwarranted  lan- 
guage, 188,  189, 190-193,  316,  317,  340-342. 

Self-stultifying  admissions.  The  State  in  the 
"  position  of  absolute  sovereignty,"  at  the 
close  of  the  Revolution ;  Convention  of 
1787  one  of  equal  sovereign  political  com- 
munities ;  only  sovereign  authority  of  the 
people  can  order  political  conditions  of 
society ;  all  supreme  power  is  in  the  peo- 
ple ;  governments  are  their  agents  and  de- 
positaries ;  the  people  may  revoke  grants 
of  power,  &c.,  328-330. 

Fatal  admissions  v.  his  "  History,"  329,  410. 

The  "American  doctrine"  as  to  powers, 
grants  of,  governments,  and  withdrawal, 
329,  333,  334,  359,  368,  374. 

The  evidences  he  fails  to  produce,  330. 

Torturing  the  treason  clause,  413. 


P. 

DANA,  HON.  MR.     The  government  federal, 

not  consolidated,  81. 

DANE,  NATHAN.   Original  enemy  of  the  Con- 
stitution, 16,  52, 162. 

Founder  of  the  "  Massachusetts  school,"  id. 

Gamaliel  of  Story  and  Webster,  id. 

Effects  of  his  teaching,  16,  17,  165. 

Expounding  of  the  preamble,  167. 
DAVIE,  W.  R.     Consolidation  would  be  an  in- 
superable objection,  129. 

State  governments  necessary  to  the  federal 
government,  id. 

Senate  represents  sovereignty  of  the  States,  id. 

The  Union  a  confederacy,  id. 

On  the  supreme  law  clause,  177. 

Opposed  to  coercion,  384. 
DAVIS,  JEFFERSON.    Vindicating  him    and 
Lee,  vindicates  institutional  liberty,  28. 

Taught  secession  at  West  Point  by   Uncle 
Sam,  32,  33. 

Or  Lee  no  traitor,  36,  402. 

Not  Davis  and  Lee,  but  States,  seceded,  36-38. 

And  Lee  protected  by  the  jus  gentium,  39, 
40. 

Opposed  to  the  policy  of  secession,  38. 

Statement  of  Hon.  0.  R.  Singleton,  id.,  note. 

Extract  from  letter  of,  on  the  subject,  id., 
note. 

Comes  not  within  the  federal  treason  clause, 
402. 

Compelled  to  obey  his  State,  36,  37,  402. 
DECLARATION  OF  INDEPENDENCE.    Not  a 
social  compact,  290,  291. 

The  true  idea  of,  291. 

Embodied  in  New  York's  first  constitution  as 
part  of  her  fundamental  law,  335. 


DEFINITIONS.    Some  decisive,  323,  324. 

The  plain  teaching  of,  324. 
DELAWARE.     Federalizes   herself.    The  first 
to  ratify,  104. 

Vote  unanimous,  date,  id. 

Text  of  her  ratification,  104, 105. 
DELEGATED    AND    RESERVED.      Not    the 
Constitution,  but  the  States,  53,  54. 

The  true  exposition  of,  181,  191, 192. 
DELEGATING.      Vesting   powers    in    govern- 
mental agency  is,  191. 

So  declared  in  ratifications  of  six  States,  191, 
192. 

How  the  "  School "  construe  the  word,  316. 

Washington  and  federal  convention  contra, 

317. 
DELEGATION.    The  delegates,  274,  311. 

Of  powers  for  federal  government,  id. 

Powers  only  subject  of,  305-307. 

Sovereignty's  delegations,  310  (Illustration). 

Corollaries,  310,  311. 

What  delegated;  delegator  and  delegatee  — 
authorities,  311,  312. 

Not  alienation,  364. 

Of  power  to  the  federal  government  may  be 

withdrawn.  302,  365,  377,  388  et  seq. 
DENCH,  HON.    MR.      Opposed   to  consolida- 
tion, 80. 

DESPOTISM.     Change  of  the  federal  govern- 
ment to  a  corporate,  197,  215,  300. 
DESPOT.     Personnel  of  the  government  have 

become  a  corporate,  215. 

DEVELOPMENT,  OR  GROWTH.  An  absurd 
idea  as  applied  to  written  constitution, 
141,266. 

DIAGRAMS,  ILLUSTRATIVE.  The  deed  [fed- 
eral Constitution]  as  executed,  138,  139. 

Our  union  and  the  confederation,  145. 

Grades  of  authority,  295. 

The  people  govern  the  people,  297. 

"  Absolute  supremacy  "  formula,  id. 

Chain  of  impartations  of  power,  301. 

Divided  sovereignty,  308. 

The  people  as  the  sovereignty,  with  govern- 
ing agencies,  309. 

The  State's  repository  of  powers,  310. 

Three  distinct  parts  of  the  general  govern- 
ment, 362. 

DICKINSON,  JOHN.  State  sovereignty,  how 
prized,  35,  395. 

The  Union  a  confederacy  of  republics,  45, 
238,390,409. 

Sovereignty  of  each  represented,  id  ,  id. 

Character  of  the  new  confederacy,  239. 

Congress  a  diplomatic  as  well  as  legislative 
body,  238. 

His  expositions  strongly  commended  by 
Washington,  id. 

Distinction  between  federal  league  and  social 
compact,  282. 

In  case  of  "bad  administration "  — what ? 
390. 

Government  agents  and  trustees  amenable  to 

their  States,  395. 
DIVINE  RIGHT.    The  spurious,  18. 

The  people  govern  themselves  by,  281,  286. 

The  only,  of  government  is  self-government, 
id.,  id.,  309,  408,  428. 

E. 

ELLSWORTH,  OLIVER.  The  people's  devo- 
tion to  States,  35. 

The  Union  a  confederacy,  47,  90. 

Aim  of  the  proposed  plan  of  government,  89, 
00 

Motion  to  expunge  "  national "  from  the 
federal  compact,  90,  200. 


INDEX. 


591 


ELLSWORTH,  OLIVER  —  continued. 
Views  on  coercion,  90,  384. 
The  States  sovereign  bodies,  367. 
Power  of  self-defence  essential  to  small  States, 

384,  388. 

States  the  guardians  of  personal  rights,  396. 
States'  right  of  self-defence  unlimited,  id. 
KM  MiRATE.    Right  to,  recognized,  281,  292. 

Right  vital  to  a  republic,  282. 
EVARTS,  W.  M.     Amusing  mistake  of,  295. 

The  war  made  no  change  in  the  Union,  331. 
EVERETT,   Edward.      Ignores    the    ratifying 

ordinances,  170. 
Strengthening  the  "  public  convictions,"  174, 

188. 

No  power  to  coerce  States,  178. 
Substituting  "  deed  "  for  "  ordinance,"  174, 

175, 188. 

He  says  the  States  are  not  named,  175. 
Expose  of  his  "views,"  192. 
Admissions  touching  the  Constitution   and 

the  Union  [note,  188],  330. 
EXPOSITION.     Fallacious:  An  expose"  of  the 

so-called  interpretations  of  the  ' '  Massachu- 
setts school "  and  of  its  aims  and  methods, 

159-254. 

Anti-National  contemporaneous,  202,  203. 
Value  of  contemporaneous,  253,  254. 
Of  the  language  of  the  Constitution,  id. 
Judicial,  of  terms  in  laws,  254. 
Lessons  to  be  derived  from  the  expose",  269, 

270. 
"  EXPOUNDERS."     Leading   dogmas  of  the 

school,  12,  53,  54,  159  et  seq. 
The  people  in  the  aggregate  made  a  constitu- 
tion, id.  52,  313. 
The  "  nation  "  evolved,  id.  144, 153. 167, 280, 

288  et  seq. 
States  subordinated,  id.,  id.,  167,  280,  id.  297 

[Diagram]  313  et  seq. 
Fallacy  of  a  new  social  compact,  18,  62,  65, 

280  et  seq.  288  et  seq. 
Dominion   of   the  government,  12,  18,  296, 

300,  3<38. 
States   have  such  status  and  rights  as  the 

Constitution  assigns  them,  id.,  53,  54,  290, 

293,  3(38. 
"Expoundings"  and  "charges"  identical, 

16,  78,  159  et  seq. 

Their  refutation,  id.,  41  ft  seq.,  53. 
The  government  a  law  unto  itself.  19,  298, 

368. 

The  chief  expounders,  52,  162. 
The  creation  of  the  law  supreme  over  the 

law-maker,  53. 
The  federal  pact  a  second  social  compact,  64, 

65,  127,  288  et  seq. 
Change   from  voluntariness   to  involuntari- 

ness  of  union,  58,  299. 
Testimony  they  ignore,  88,  159. 
The  "  deed  "  itself  contradicts  them,  153. 
Deplorable  results  of  their  teachings,  165. 
Set  up  a  screen  before  the  Constitution,  166. 
No  note  of  the  ordinances  of  ratification,  167. 
The  reason  for  the  suppression,  170. 
Their  ''construction11    means     fabricating. 

172. 

"  Supreme-law  "  sophisms,  176  et  seq. 
Proving  too  much,  178. 
Phrase-culling,  181,  186,  187,  197. 
The  three  cardinal  assumptions  of,  181. 
How  "  reserved  to"  is  expounded,  id. 
Garbling  the  ratifications,  182  et  seq. 
Garbling  the  Federalist,  185  et  seq. 
What    the    federalist    really  asserts  of  our 

polity,  186, 187. 

Ratification    according    to    the    leading  ex- 
pounder of  the  day,  188  et  seq. 


"  EXPOUNDERS  "—continued. 
Suppression  and  distortion  of  the  conven- 
tion's records,  196  et  seq. 
Style  of  quoting,  100, 199. 
What  their  theory  involves,  205,  296. 
Their  stand  in  1861,  213. 
Legitimate  conclusions,   in  Lincoln's    plain 

English,  214. 

Their  unionolatry,  and  why,  219,  220. 
Methods,  pretences,  and  aims,  220. 
Subterfuge  respecting  the  State  and  federal 

constitutions,  288,  289. 

Ignore  dual  capacity  of  the  citizen,  295,  296. 
Illustrations  of  their  theory,  id. ,  297-299, 313. 
Facts  and  queries  for,  301,  302. 
Notions  of  Sovereignty,  306,  307,  316  et  seq. 
Delegating  Sovereignty  —  reductio  ad  absurd- 

urn,  id.,  id. 
Sophistical  exceptions  out  of  sovereignty,  307, 

308,  314-316,  318. 

Defences  made  means  of  attack,  314. 
The    stand  is  upon  Lincoln's  dogma,  315, 

316. 

Arguing  from  false  words,  317. 
The  "school's"  corner-stone,  316. 
Test    questions  touching    de-sovereignizing, 

329,  330. 
The  alleged  change  from  federation  to  another 

system,  12,  41,  42,  334,  368. 
The  onus  probandi,  335,  336. 
The  alleged  "  understanding,"  336. 
Virtually  admit  State  the  ultimate  arbiter, 

358,  359. 

Verbal  quibbles,  364. 
Contradict  the  fathers,  368. 
Touching  the  honesty  of  their  "  convictions," 

368, 369. 

What  their  wrong-doing  culminates  in,  369. 
Their  interpretation  a  subterfuge,  369. 
Error  on  the  question  of  treason,  411,  412. 
Absurd  notion  of  the  transfer  of  citizenship, 

416,417. 
"  EXPOUNDING."    An  essential  part  of  the, 

theory,  295,  296. 
Theory  of  national  "  absolute  supremacy," 

399. 

What  the  "school"  have  long  tried  to  con- 
ceal, 303. 

Example  of  the  most  pernicious,  313.  314. 
Some  of  the  most  respectable  professors  of 

the  "school,"  316. 
Deceptive  terms,  317,  364. 
Is  become  degraded,  id. 
"EXPOUNDINGS."    Modern,   identical  with 

the  original  charges,  against  the  Constitu- 
tion, 16,  78, 159. 
Were  refuted  by  Washington,  Hamilton,  and 

all  the  fathers,  id.,  42  et  seq. 
Their  refutation  barely  saved  the  system,  53, 

86,  87. 

Comparison  of,  with  the  charges,  159  et  seq. 
Calamitous  consequences  of,  165. 

F. 

FACT.    The  character  of  our  polity  is  matter 
of,  42,50,  52,63,  77,78,  166. 

Professors  of,  wanted,  49. 

Exposition  of  polity  is  exposition  of,  51. 

Averments  of,  65-57. 

Ordinances  of  ratification  are  indestructible 
facts,  167. 

The  whole  subject  one  of,  274,  368,  369. 

Issues  of,  tendered,  332,  333. 

Facts  in  the  political  history  of  Pennsylva- 
nia, 288,  289,  292. 

Facts  as  to  the  States,  392,  393,  325,  326, 359, 
360. 


592 


INDEX. 


FACT  —  continued. 
Title  of  the  government  an  important,  201, 

202,  302. 

"  Most  palpable  of  all  the  facts,"  331. 
Facts  must  prevail, 367  et  seq. 
FATHERS,  THE.     The  people  sovereign     the 

government  an  agency,  9  et  seq. 
On  coercion,  31,  32,  329,  377,  382,  383,  396. 
The  great  aim  of,  355,  385  et  seq. 
On  love  of  one's  State,  34,  35,  395,  396. 
On  the  character  of  the  union  and  the  gov- 
ernment, 42, 136,  140,156,  338. 
On  the  commonwealths,  65,  66,  169. 
On   federalization,    31,  32,   42    et  seq..   202, 

203. 

Theory  of  the  Constitution,  155,  180, 202, 203 
The  "  supreme  law  ';  clause,  177. 
The  work  of  the  convention,  201-203. 
Compact    means  Constitution,  and    accede, 

ratify,  206,  207. 
The  social  compact  and  the  federal  pact.  282, 

337,  338. 
Federal    and  State  governments,  311,  312, 

355. 
Sovereignty   and  "sovereign  powers,"  317, 

318. 

On  delegations  of  power,  194. 
Our  Constitution  of  general  government,  367, 

On  federal  usurpation,  376,  377,  380. 
Self-defence  of  States,  388  et  seq. 
FEDERALIST,  THE.  Testimony  of  the  writers 

of,  42,  43. 
Federal  and  State  governments,  agents,  and 

trustees,  30,  31. 
Testimony  as  to  our  polity,  43,  44, 179, 186, 

230,240. 

Story's  garbling  of,  185. 
Washington  [who  knew  the  writers]  says  the 

articles  of,  place  the  polity  in  a  true  light, 

FEDERALISTS,  THE.  Overcame  the  nation- 
alists, 75. 

Their  theory  of  the  Constitution,  275. 
FEDERAL    AGENCY.     The    general    govern- 
ment, 31,  32,  37. 193,  194,  302,  363,  374. 

Going  into  operation,  125-127. 

Personnel  of,  9, 10,  29,  30,  143,  193,  364. 

Through  which   the  States  exercise  federal 
self-government,  125,  196,  197,  374,  375. 

Empowered  by  the  States  to  act  on  individ- 
ual citizens,  75,  261,  262,  383  et  seq.,  394. 
FEDERAL  ACTS.     Those  outside  of  delegated 
powers  nullities,  380,  381. 

Such  acts,  if  enforced,  are  usurpations,  id. 
FEDERAL    COMPACT.      Principles,  modified 
by  the  war  and  results,  25,  26.    [See  Com- 
pact, Federal.] 

FEDERAL  SITES.  Terms  upon  which  ac- 
quired from  the  respective  States.  63,  340, 
341.  359,  360. 

New  York's  qualified  cession  of,  id.,  233,  339, 
340, 365. 

Massachusetts',  et  seq.  63,  342. 

Pennsylvania's,  id.,  343,  344. 

Virginia's,  id.,  344. 

South  Carolina's,  id.,  344,345. 

The  new  States',  346. 

Pertinent  inquiries  for  the  "Expounders," 
345. 

Conclusions,  346. 

"  FEDERALTZE,"  TO.  An  expression  of  Joel 
Barlow,  77. 

Its  significance,  id. 

The  first  move,  74,  76. 

Preliminary  remarks  on,  77,  78. 

Principles    upon    which    republican    States 
agree,  347, 348. 


FEDERALIZING  AND  REPRESENTATIVE 
DEMOCRACY.  The  bases  of  our  constitu- 
tions, 347,  348. 

FRANKLIN,   BENJAMIN.     Character  of  the 

Union,  44,  45. 

Senate  represents  sovereign  States,  id.,  102, 
367. 

FREEDOM,  POLITICAL.  Conditions  of  its 
vitality,  348,  349. 

"FREE,  SOVEREIGN,  AND  INDEPENDENT." 
Use  and  meaning  of  the  phrase,  333. 

FUNDAMENTAL  PRINCIPLES.  From  the 
statements  and  opinions  of  the  father.-. 
Part  V.  p.  373  et  seq. 

I.  The    people    are    the    States,  composing 
whatever  nation  there  is  ;  the  federal  gov- 
ernment  their  agency,   through  which  is 
federal  self  government,  373-375. 

II.  The  fathers  aimed  to  prevent  the  federal 
delegative  authority  from  increasing  to  the 
control  and  destruction  of  States,  376-379. 

III.  Federal  acts,  outside  of  delegated  pow- 
ers, to  be  treated  as  nullities,  and,  if  en- 
forced, to  be  resisted  as  usurpations,  380, 
381. 

IV.  Federal  coercion  of  States  is  absolutely 
prohibited,  382-387. 

V.  States   have  unlimited  right  of  self-de- 
fence, even  against  the  federal  agency,  373, 
388,  393. 

VI.  Defence  of  the  State  with  arms,  in  obedi- 
ence to  her  will,  is  the  duty  of  her  citizens 
—  is  true  loyalty,  and  not  treason,  394- 
396. 

G. 

GEORGIA.  Federalizes  herself:  Vote,  date, 
121. 

Ordaining  words,  id. 

GIBBON.  A  Roman  chapter  of  American  his- 
tory, 19,  20. 

GORE,  CHRISTOPHER.  The  union  of  sove- 
reign States,  47. 

"  GOVERNMENT,  THE."  Abuse  of  powers 
by,  7. 

Self-consolidation  of,  13,  17,  18,  300. 

The  self-vaunted,  298,  303,  368. 

A  misleading  misnomer,  365. 
GOVERNMENT,  SELF.  [See  Self-Government.] 
GOVERNMENT.      The  changes  contemplated 
on  the  new.    The  fathers  on  the  nature  of 
our,  9-11,  44e*se9.,194. 

Consolidation  of  the  federal,  13,  17,  18,  20, 
293,  334. 

Personnel  of  the  federal.  —  "  citizens  "  and 
"subjects"  of  States,  ''agents,"  "substi- 
tutes," "servants,"  "representatives"  of 
the  people,  id.,  29,  30,  143,  194,  286.  312, 
364. 

The  general,  the  creation  of  the  States.  9  et 
seq.,  31,  32, 126, 137, 140, 153, 154, 333, 363, 
414, 415. 

Federal  and  State  Governments,  but  "  agen- 
cies," "  trustees,"  "  depositaries,"  10,  11, 
37,  193,  281,  302,  311,  329,  374,  375. 

No  sovereignty  in  the  general,  36,  37,  53,  54, 
63,  64, 125,  273,  281,  305. 

View  of  Webster,  37. 

View  of  Kent,  340. 

Testimony  of  the  Federalist,  42,  43,  239, 
240. 

Is  mental  and  functional  action,  57, 152, 285, 
306. 

All  powers  in  the  general,  delegated  by  the 
States.  9,  10,  64,  63,  64,  75,  155,  172, 191, 
305,  310,  382. 

Of  suhjpption  to  the  federal,  64,  75, 196, 197, 
292/385. 


INDEX. 


593 


GOVERNMENT  —  continued. 
True  character  of  our,  76,  125, 136, 140,  141, 

297,  302,  303. 
Empowered  by  the  States  to  act  on  citizens, 

iV.,  itl.,  196,  383  et  seq. 
General  Constitution   of  the,   effected  by  a 

league,  75,  77,  136,  137,  140,  154,  155,  266, 

275. 

The  general,  is  subordinate  to  the  common- 
wealths, 77,  150,  151,  153,  177,  285,  361, 

414. 
The  general,  is  the  agency  of  the  States  in 

federal   matters,   125,   136,   194,  302,  312, 

355, 373. 
When  the  federal  began  to  be,  126,  127, 193, 

3t>4,  363. 
Of  the  States  jointly  and  severally,  127,  144, 

147,  196,  197,  [Diagram]. 
"  A  republican  form  of,"  151, 152, 255  et  seq., 

359. 
Is  tripartite,  as  devised  by  the  convention, 

144,  145,  [Diagram]. 
Is  tripartite,  distinct  entities,  coexisting  and 

independently  acting,  193,  362  [Diagram]. 
The  Constitution  of,  is  not  the  government, 

153. 
Ratification  the  basis  for  starting  the  new, 

167. 
The  federal,  has  no  coercive  power  over  a 

State,  178,  197,  295. 
Distinction  between  the  consolidated  and  the 

federal,  180,  202,  203,  296-298,  345,  346, 

378, 379. 

Our  form  of,  48,  77, 176. 
The  States  are  the  real,  150,  191,  294,  299, 

394. 
The  general,  cannot  be  a  grantee,  193,  363 

et  seq. 
Cannot  be  a  party  to  the  act  creating  it,  id., 

259,  260,  365. 

State  and  federal  governments  a  great  politi- 
cal machine,  196. 

The  personnel,  have  become  a  corporate  des- 
pot, 213,  363. 

All  right  of,  is  in  society,  266,273. 
Constituting,  vs.  constituting   society,   288, 

289. 

Change  of,  is  not  changing  society,  289,  290. 
Best  and  most  sacred  foundation,  291. 
No,  with  coercive  powers  over  itself,  295. 
The  "  absolute  supremacy  "  claim,  296,  300, 

360,368. 

Institutions  of,  297. 
The  real,  is  the  republics,  298. 
Cannot  control  sovereignty,  299,  360. 
Grades  of  authority  in  State  and  federal,  300, 

301  [Diagram],  365,  366. 
American  doctrine  as  to  all,  329. 
Not  the  object  of  treason  or  allegiance  in  a 

republic,  339,  414,  415. 
The  reai  grantee  is  the  federation  or  league, 

193,  260,  365. 

The  special  aim  in  forming  the  federal,  363. 
Our,  according  to  the  fathers,  367,  368. 
Our,  according  to  the  sons,  368. 
Is  derivative  and  agential,  369,  374. 
As  it  was,  339.     As  it  is,  id. 
The  federal,  when  a  trespasser  and  perjured, 

A  federal,  with  coercive  powers  over  States 
visionary,  383. 

A  coercive,  how  characterized  by  the  fede- 
ralist, 385. 

The  general,  i«  dependent  on  the  people's 
free-will,  389. 

The  guaranty  of  "  a  republican  form  of." 
Meaning  of  this  clause  in  the  federal  Con- 
stitution, 235  et  seq.,  359, 360. 


GRANT,  PRESIDENT.    His  phrase,  "  Let  us 

have  peace,"  14. 

Duty  to  States  under  his  oath,  14, 15. 
Subjugating  the  commonwealths,  213. 
GRANTEE.     Government  cannot  be,  193,  363, 

364. 

The  real,  was  the  federation,  id.,  id. 
Was  expressly  "  the  United  States  "  eo  no- 
mine, id.,  id. 

In  the  sense  of  trustee  or  agent,  id. ,  id. 
GRANTS— None   of   power,  in  the   sense   of 

alienation,  191,  363,  364. 

GRANTS  AND  CONDITIONS.    Object  of,  self- 
preservation  of  the  State,  356. 
Who  decides  as  to  violations  and  forfeitures 

of,  356,  357. 

"  Expounders,"  virtual  admission,  358,  359. 
GREELEY,  HORACE.    States  cannot   be  co- 
erced, 178. 

His  American  conflict,  315. 
GROWTH  AND    DEVELOPMENT  THEORY. 
Insidious  and  pernicious  error,  141,  266, 
267. 

H. 

HAMILTON,  ALEX.    The  people  sovereigns, 
9,325. 

Character  of  the  Union,  43,  93,  94,  239,  240. 

States  the  essential  component  parts  of  the 
system,  id.t  id.,  325. 

The  "  supreme  law  "  clause,  177. 

States  accede  to  the  compact,  205,  206. 

The  Union  a  confederacy,  id.,  367. 

The  people  of  the  United  States  as  organized, 
299. 

The  federal  and  State  governments,  309. 

The  States  and  the  general  government,  325, 
357. 

Invasions  of  public  liberty,  357,  392,  393. 

The  people  masters  of  their  own  fate,  id.,  id. 

People  of  New  York  sovereigns,  367. 

Unconstitutional  laws  not  binding,  380. 

Coercion  of  States  one  of  the  maddest  of  pro- 
jects, 383,  385. 

His  view  of  a  government  of  coercion,  385. 

"  The  great  and  radical  vice  "  in  the  confede- 
ration, id. 

Self-preservation  of  States,  392,  393,  395. 

Attachment  of  individual  to  his  State,  415. 
HANCOCK,  JOHN.     The  people  the  source  of 
federal  power,  85. 

People  of  the  State  can  reject  or  ratify,  id. 

Proposed  the  10th  amendment,  86,  377- 

His  action  as  to  the  llth  amendment,  387. 
HENRY,  PATRICK.     Opposition  to  the  union, 
107. 

On  the  concurrent  powers  of  taxation,  109. 

The  soul  of  a  confederation,  111. 

The  charge  of  consolidation,  160,  161. 
HISTORY,    AMERICAN.     On    the    common- 
wealths, 65. 

Shows  the  States  forming  government,  not 
society,  id. 

Sovereign  republics  constituted  a  federal 
government,  136. 

States  pre-existent  and  supreme ;  planned 
the  Constitution  and  created  the  govern- 
ment, 144,  172,  285,  286,  392,  393. 

The  national  idea,  180. 

States  not  consolidated,  145,  194. 

As  to  the  ratification  of  the  Constitution,  167, 
169. 

The  distribution  of  powers,  172-174. 

The  several  States  as  the  "  United  States," 
12,  274. 

What,  and  exegesis  clearly  prove,  274. 

Distinguishes  between  law  of  being  of  the 
State  and  that  of  government,  288,  289. 


38 


594 


INDEX. 


HISTORY,  AMERICAN  —  continued. 
As  to  sovereignty,  "  consent  of  the  governed," 
the  commonwealths,  federalizing,  etc.,  294. 
And  the  supreme  law  clause,  181. 
The  expounders  invert,  219,  297. 
Shows  a  federation  of  sovereignties,  301. 
As  to  the  federal  pact,  346,  355,  360. 
State  protection  and  preservation,  360. 
What  our  recent,  suggests,  369. 
American  citizenship  in,  410. 
As  to  allegiance  and  treason,  421. 
HUME.     Law  of  the  State's  being  [note,  p.  18], 

285,291. 

Consent  of  the  governed,  291. 
The  alleged  explosion  of  the  Social  Compact 

[note,  p.  18],  291. 

HUNTINGTON,    GOV.    The    people   are  the 
government,  90. 


IMPERIALISM.     Acts  of,  by  the  general  gov- 
ernment, 155,  213. 
INNES,  JAMES.    Ratification  the  exercise  of 

sovereignty,  108,  111. 

INQUIRY.     Is  one  of  fact  as  to  the  govern- 
ment and  the  parties  to  it,  42. 
INTERPRETATION.     Comes  after  establish- 
ment, 50,  166. 

Is  of  words,  phrases,  etc.,  not  of  the  system, 
id.,  id. 

Pseudo  schools  of,  50,  51,  53. 

The  making  of  the  Union  a  matter  of  fact, 
not  of,  50,  166. 

The  "  school "  was  one  of  perversion,  not  of, 
52,53. 

The    perverters'  exegetical  system,  53,  54, 
162,  163. 

Efforts  of  the  "  school  "  on  leading  questions, 
id. 

Examination  of  the  so-called  interpretations, 
165  et  seq. 

The  sophistical  circle,  176. 

The  subterfuge  of,  50,  166,  369. 

The  expounders'  screen  of,  166. 

False  evidence  of  establishment,  171  et  seq. 

Disproved  by  the  ratifications  of  the  States, 
171, 172. 

And  the  constituting  of  the  government,  172. 

The  federal  convention  did  not  ordain,  172, 
iTfl 

The  fiction  as  to  a  distribution  of  powers, 

That  the  States  are  not  named  in  the  pact, 

174, 175. 

The  "  supreme  law,"  176-178. 
Stultifying  admissions,  178. 
The  polity  partly  federal,   partly  national, 

178,180. 

Perversion  of  the  phrase  "  reserved  to,"  181. 
Garbling  the  ratifications,  182  et  seq. 
The  obvious  intent  of  such  perversion,  183, 

184. 

The  true  versions,  183,  184. 
Garbling  interpretation  of  "  the  Federalist," 

185, 186. 

Changing  terms  and  meanings,  188  et  seq. 
Irrevocable  grants,  consolidation,  etc.,  "in- 
terpreted"  from  the  acts  of  ratification, 

188-190. 

Examination  and  refutation,  190  et  seq. 
Misstating  the  views  and  acts  of  the  federal 

convention,  196  ft  teq. 
"Constitutional    Compact"  and  "accede," 

204-207. 

Outcome  of  the  "  interpretations,"  215. 
What  is  done  under  pretence  of,  220. 
Lessons  to  be  noted,  220,  221,  269,  270. 


IREDELL,  JUDGE.  States  sovereign  in  the 
Union,  47. 

The  people  make  governments,  128,  129. 

And  new  model  them  at  pleasure,  128,  389, 
390. 

Those  in  power  servants  and  agents,  id. 

The  understanding  as  to  ratification,  id. 

The  senate    to    preserve  State  Sovereignty. 
129,390. 

Import  of  the  supreme-law  clause,  177. 

On  usurpation and.unconstitutional  laws,  id., 
380. 

That  power  which  created  the  government 

can  destroy  it,  390. 

ISSUES  OF  FACT.  The  people,  how  politi- 
cally exist  and  act ;  their  states,  their 
character,  attributes,  and  action,  332, 
333. 

The  American    polity  in    our    history  and 
records,  367-369. 

J. 
JACKSON,    PRESIDENT.     On    the    ties    of 

Union,  67. 

Confounds  delegating  of  powers  with  trans- 
fer of  citizenship,  311,  397,  398,  402. 
On  his  duty  under  the  Constitution,  381. 
The  proclamation    against   South  Carolina, 

397:398. 

JARVJS,  DR.  CHAS.    Remarks  in  the  Massa- 
chusetts convention,  83,  84. 
JAY,  JOHN.     The  people  govern,  10. 
On  the  proposed  government,  id.,  43,  44,  92, 

93. 

A  "  Union  of  States,"  93,  367. 
States  adopted,  id.,  id. 
The  States  acceded  to  the  Union,  206. 
JEFFERSON,  PRESIDENT.    On  the  sedition 

law  and  his  functions,  381. 
The  States'  compliance  with  federal  requisi- 
tions, 385. 
JOHNSON,  DR.  [of  Conn.l.     States  have  the 

right  of  self-defence,  388. 

JOHNSON,  PRESIDENT.    On  the  right  to  re- 
fuse obedience  to  laws,  381. 
JOHNSTON,  GOV.  SAMUEL.    Ratification  op- 
tional, 130. 

Rights  of  the  people  and  States  assured,  id. 
JUDICIARY,  FEDERAL.    Power  of,  is  of  the 

United  States,  150. 

Creation  of  the  States,  existing  by  their  will, 
385,386. 

K. 
KENT,  CHAN.    Sovereignty  and  lordship  of 

the  soil,  340. 

KEY-NOTE.    Of  the  acts  of  the  States  and  ut- 
terances of  the  fathers,  414. 
KING.     Change  of  personal,  for  a  corporate, 

298,  299. 

KING,  RUFUS.  Federal  laws  must  be  laid  on 
individuals,  not  States,  384. 


LANSING,  JOHN.     Senators  to  represent  the 

sovereignty  of  the  States,  94. 
LAW,  CHIEF  JUSTICE.    The  people  are  the 

government,  90. 

LAW,  SUPREME.    See  under  SUPREME. 
LAWS.     Why  citizens  of  States  obey  the  fede- 
ral, 75, 125,  292,  383,  384. 
The  law  of  the  sovereign  people,  323,  364. 
Of  Congress,  when  not  binding,  373,  380. 
Of  refusal  of  obedience  to,  id.,  380,  381. 
National,  must  operate  on  individuals,  not 
States,  383,  384. 


INDEX. 


595 


LEE,  HENRY.     Ratification  was  by  States,  110. 

The  people  bound  only  by  their  own  act,  id. 

LEE,  GEN.  R.  E.     The  principles  justifying  his 

action,  28-30,  36. 
Was  taught  secession  as  a  matter  of  law  at 

West  Point,  32,  33. 

Opposed  to  the  policy  of  secession,  38. 
His  State  seceding,  deported  him,  36,  37,  422. 
Violated  no  "  national"  allegiance,  id.,  id. 
LEGISLATURE,   THE.      And    constitutional 

limitations,  243,  303. 
LIBERTY.    The   true   principles   declared  by 

Massachusetts,  68,  69. 
The  sober  vigilance  American,  demands,  220, 

221. 
LIBERTY  INSTITUTIONAL.    The  citadel  of 

American,  173. 

LIBBER,  PROF.     The  social  compact,  284. 
LINCOLN,   PRESIDENT.      Political   ideas   in 

inaugural,  12,  214. 
His  emphasis  of  the  "  Expounders'  "  views, 

132. 
His   plain  English  of   the   "Expounders'" 

doctrines,  214  et  seq. 

How  far  sinned  against,  and  sinning,  214,  215. 
Examination  of  his  "constitutional  views," 

215  et  seq. 

"  A  State  no  better  than  a  county,''  215,  216. 
"  The  word  [sovereignty]  not  in  the  National 

Constitution,"  218,  217. 
His  guesses  and  notions,  217,  297. 
States  are  the  creations  of  the  Union,  217, 

218. 

Have  such  status  and  rights  as  the  Constitu- 
tion confers,  218.  219. 
Perverted  views  and  ideas,  219. 
LINCOLNS,  THE.     Query  for,  as  to  the  "  Na- 
tional idea,;'  273. 
LIVINGSTON,  CHAN.    All  power  is  derived 

from  the  people,  10. 

Governments  as  deposits  of  power,  10,  11,  93. 
Federal  laws  must  operate  on  individuals,  93. 
Our  polity  a  league  of  States,  id. 
LIVINGSTON,  GOV.  W.    Advocated  the  plan 

of  federation,  97. 

LORDSHIP   OF  THE   SOIL.     New  York  as- 
serts, 62,  63,  339,  340. 
And  Virginia,  62,  340,  344. 
The  American  and  republican  idea,  id.,  id. 
Massachusetts,  342,  343  ;    Pennsylvania,  343, 
344;    South  Carolina,  344,  345;  and  the 
new  States,  346. 
LOYALTY,  TRUE.    Defence  of  one's  State  at 

her  command,  34,  35,  394  et  seq.,  422. 
Important  corollaries,  394. 
Emphatic  testimony  of  the  fathers,  395,  396. 
The  whole  theory  of,  summed  up,  396. 

M. 

MACLAIN,  ARCH.    The  Constitution  a  mere 

proposal,  130. 

The  phrase  "  we,  the  people,"  id. 
MADISON,  JAMES.     The  ultimate  authority 

in  the  people  alone,  11,  30,  108. 
Federal  and  State  governments  only  agents 

and  trustees,  id.,  id.,  id. 
By  "  the  people  "  is  meant  13  sovereignties, 

30,  31,  108,  309. 

Character  of  the  Union,  43,  108,  309. 
Each  State  ratified  as  a  sovereign,  id.,  id. 
The  character  of  the  Constitution,  43,  178. 

179,  185. 

Powers  reserved  and  those  delegated,  311. 
A  federal  government,  202,  206. 
Coercion  of  States  a  dissolution  of  compacts, 

383. 
A  federal  government  of  coercive  powers  over 


MADISON,  JAMES  —  continued. 

its  members  provides  for  its  own  destruc- 
tion, 383,  385. 

A  State  cannot  be  called  into  court,  386. 

States  have  absolute  right  of  self-defence, 
392. 

Virginia  bound  only  by  her  separate  assent, 
id. 

Virginia  may  renounce  the  government,  id. 

The  militia  for  the  defence  of  States,  id. 
MAGISTRACIES,  FREE.      How  perverted,  6, 

19,  69,  334,  431. 
MAR1US.     Pretending  to  protect  the  people, 

subverts  the  polity,  21. 

MARSHALL,  CHIEF  JUSTICE.     The  people 
sovereign,  10, 108,  109,  365. 

Delegated  power  may  be  withdrawn,  id.,  id  , 
389. 

Governments  the  people's  agents,  id.,  id. 

The  sovereign  power  in  the  Union  is  States, 
47,  108,  386. 

Holders  of  power  servants  of  the  people,  108, 
389. 

Governments  depending  on  our  free  will,  id., 
id. 

On  the  control  of  the  militia,  392. 

Self-defence  of  States,  395,  396. 
MARTIN,  LUTHER.     Charges  against  the  pro- 
posed new  Union,  106,  160,  161. 

His  impelling  motive,  161. 
MARYLAND.     Federalizes  herself,  105. 

Vote  ;  Date,  etc.,  id. 

Prompt  action.     Terms  of  ratification,  106. 

Luther  Martin's  opposition,  id. 
MASON,  GEO.     The  sovereignty  of  State  can- 
not be  judicially  proceeded  against,  386. 
MASSACHUSETTS.     A  passing  tribute  to, '54, 
55,  162. 

On  the  social  compact,  sovereignty  and  gov- 
ernment, 60,  61,  282,  410. 

Champion  of  State  Sovereignty,  55,  61,  283, 
417,  418. 

The  people,  their  substitutes  and  agents,  id. , 
310. 

Asserts  her  sovereignty,  61, 342, 343, 410,  417, 
418. 

And  right  to  change  government  at  pleasure, 
id. 

Should  again  vindicate  liberty,  68. 

Federalizes  herself,  79. 

Date  of  ratification,  id. 

Vote  on  ratification,  id.,  377. 

Debate  in  her  ratifying  convention,  80,  376, 
377  e.t  seq. 

All  her  statesmen  assert  her  sovereignty,  80 
et  seq. 

All  deny  and  denounce  consolidation,  id. 

Proposes  the  10th  amendment,  85,  86,  377. 

Ratifies,  and   thereby  ordains  the  Constitu- 
tion, 88. 

11  We,  the  people,"  means  Massachusetts,  82, 
83. 

Ratifying  and  ordaining,  words  of,  88. 

When  independent,  became  a  nation,  275. 

Practical  results  of  the  modern  theory,  280. 

Preamble  to  her  Constitution,  282,  283,  289. 

Story's  garbled  quotation,  289. 

All  her  citizens  her  subjects,  418. 

Asserts  sovereignty  over  her  soil,  342,  343. 

Pronounces  acts  of  Congress  in  violation  of 
the  Constitution  void,  380. 

Agitates  for  the  adoption  of  the  llth  amend- 
ment, 386,  387. 

Absolute  over  her  citizen  soldiery,  403-405. 

The  ancient  faith  of,  391,  392. 

Political  action  in  the  Union.     The  old  faith, 
despite  the  new  works,  405-407. 

Citizenship,  allegiance,  and  treason,  417, 418. 


596 


INDEX. 


"MASSACHUSETTS  SCHOOL."  Statement 
of  doctrine,  12. 

Is  not  a  school  of  interpretation ,  52. 

"  School  "  of  perversion,  id.,  127,  170. 

Means  flock,  following  a  bell-wether,  53, 
173. 

Its  sophistries  on  leading  questions,  53,  54. 

Does  not  represent  Massachusetts,  54,  55. 

Leading  dogma  repudiated,  126,  391,  392. 

What  it  seems  to  ignore,  127. 

Consolidation  doctrine  in  brief,  142,  143. 

Examination  of  its  leading  dogmas,  165  et  seq. 

"Consent"  of  the  federal  convention  the 
basis  of  the  Constitution,  172, 173. 

Ratifying  made  the  States  a  nation,  173. 

The  blind  leading  the  blind,  173,  174. 

The  convictions  wrought  by  their  teachings, 
174. 

The  "  school's  "  climax  of  interpretation,  176, 
177. 

Misstatements,  sophistries,  and  self-over- 
reaching, 178. 

Uniform  garbling  of  the  ratifications,  182, 
183. 

The  motive  thereof,  183,  184. 

Ingenuity  in  quotation,  185,  186. 

Perverting  the  ordinance  of  ratification,  188 
et  seq. 

The  "  school's  "  material  interests,  211,  212. 

What  interpretation  masks,  and  the  reasons 
why,  220. 

Verbal  jugglery,  242  et  seq. 

Practical  results  of  the  •'  school's  "  teaching, 
280,  315,  316. 

Its  teachings  on  sovereignty,  314,  315. 

Its  teachings  on  State  rights,  315,  316. 
McKEAN,   JUSTICE.     On    the    Pennsylvania 

convention,  169. 

MILITIA.  The'  State  has  the  supreme  right, 
coupled  with  the  duty,  to  the  control  of, 
for  her  defence,  392,  394,  403. 

A  startling  proposition,  403 

The  military  force  primarily  contemplated, 
id, 

Massachusetts  on  the  use  and  control  of  her 
citizen  soldiery,  403  et  seq. 

No  federal  authority  over,  but  by  consent  of 
State,  403,404. 

The  military  subordinate  to  civil  authority, 

404, 405. 

MILL,  J.  S.    The  American  Union,  332. 
MONTESQUIEU.    Laws  of  suffrage  fundamen- 
tal, 7,  17. 

The  confederate  republic,  republic  of  repub- 
lics, 22,  332,  347. 

Description  of  a  State,  65. 

His  authority  :  Influence  on  the  fathers,  347. 

On  the  republic  and  territorial  area  [note], 

349. 

MORRIS,  GOUVERNEUR.  The  Constitution 
a  compact  between  sovereign  powers,  45, 
368. 

Worth  of  constitutional  limitations  243. 

The  constitutional  amendments,  38/. 
MOTLEY,   J.  L.     Asserts  the  States  are  not 
named  in  the  Constitution,  175,  184,  185. 

Nine  averments  of,  which  the  Constitution, 
the  records  of  the  country,  and  the  ratifica- 
tions flatly  contradict,  184,  185. 

N. 

NATION,  THE.      The    only,   is  composed  of 

States,  31,32,  179, 197.  373. 
Of  the  "  Massachusetts  school "  a  figment, 

55,  126,  127,  156,  180,  297. 
How  evolved  by  the  expounders,  12,  52,  113, 

153, 167, 178, 179,  288  et  seq. 


NATION,  THE-  continued. 

There  were  no  citizens  of  a,  155, 156,  179. 

The  convention  did  not  represent  a,  172. 

The  quasi,  of  the  States'  sovereign  wills,  179, 
298,  414. 

The  originals  of  the  semblance,  414. 

Federal  history  exhibits  no  such  creation,  144, 

180,  297,  352. 

"  NATIONAL  SOVEREIGNTY."     Cannot  be 
enforced  over  States,  299,  360,  373. 

Precautions  of  the  fathers,  299,  373,  376,  382 

et  seq. 
NEW  HAMPSHIRE.    Federalizes  herself,  122. 

Vote  on  ratification  :  Date,  id. 

Unites  as  a  sovereign  State,  122. 

Declarations  of  sovereignty,  rights  of  govern- 
ment, and  subordination  of  government 
functionaries,  122,  123. 

Her  ordaining  words,  123. 

Ratification  coupled  with  amendments,  id. 

There  being  nine  States  "  parties  to  the  com- 
pact," the  federal  government  is  assured, 
124, 125. 
NEW  JERSEY.     Federalizes  herself,  97. 

Date  of  ratification,  id. ;  vote  on,  id. 

Views  of  her  statesmen,  97. 

"  We,  the  people,"  means,  98. 

Ratifying  and  ordaining  words,  99. 

How  leagued,  id. 

NEW  YORK.     On    sovereignty,  government, 
etc.,  61,  62, 96. 

Uncle  Sam  in,  only  for  her  defence,  63,  340, 

Sovereign  of  her  domain,  62,  96,  338,  339,  340. 

The  United  States  stand  on  her  soil  only  by 
her  grant,  63,  339. 

Terms  on  which  federal  sites  are  granted,  63, 
337,339. 

Federalizes  herself,  92,  337,  338. 

Her  statesmen  on  the  proposed  system,  92- 
94. 

Date  of  ratification,  92.    Vote,  id. 

"  We,  the  people,"  means,  95. 

"  The  convention  declares  her  "  understand- 
ing," 94,  95. 

Ratifying  and  ordaining  words,  95,  337. 

Ordinance  carried  by  only  three  (3)  votes, 
id.,  id. 

Ratifies  the  pact  as  a  sovereign,  id.,  id. 

Sovereign  over  people  and  soil,  62,  96,  338. 

Records  as  sovereign  ;  Historical  glance,  335 
et  seq. 

Declarations  of  Hamilton,  Jay  and  Living- 
ston, 92-94,  337,  338. 

Leagued  in  a  confederacy  of  sovereign  States, 


Rights  of  citizens  and  the  federal  Constitu- 
tion, 338. 

The  United  States  a  party  to  the  conditions 
of  occupancy  of  federal  sites,  341. 

Two  capacities  in  which  the  United  States 
government  is  received,  id. 

Cursory  review,  342. 

NORTH  CAROLINA.    Federalizes  herself,  128 
et  Sfq. 

The  Constitution  rejected,  vote,  id. 

Ratification.     Vote.  128. 

The  sovereign  will  clearly  demonstrated,  id., 
131. 

The  convention  on  the  proposed  federal  sys- 
tem, 128-131. 

Refuses  to  adopt,  and  demands  amendments, 
142,143. 

Ratifies,   amendments    being   assured,    131, 
132. 

Address  to  Washington  on  the  Union  of  the 
States,  132. 

The  President's  reply,  132, 133. 


INDEX. 


597 


p. 

PACT,  FEDERAL.    The  only  parties  to,  are 

States,  29. 

Recognizes  citizens  as  of  States,  66,  288. 
The  Constitution  became,  when  ratified,  138. 
Testifies  to  a  league  of  States,  148. 
Significance  of  its  possessive  phrases,  id.,  364. 
States  ratify  the,  168, 169. 
Story's  admission  as  to  source  of  vitality  and 

validity,  184. 

Adoption  of,  not  a  new  social  compact,  288. 
Why  the  citizen  is  subject  to,  292. 
And  the  sovereign  wills  of  the  States,  302, 

305,  357,  358. 

Designates  the  system  and  agency,  302. 
Only  powers  imparted  to,  305. 
A  created  instrumentality,  320. 
As  to  ultimate  arbiter,  357,  358. 
United  States  Supreme  Court,  on,  358,  359, 

383  (note). 
PALLADIUM.     Of  the  citizen's  private   and 

personal  rights,  35,  378. 
PARSONS,  THEOPH1LUS.     The  government 

the  result  of  a  compact,  10, 194. 
In  delegating,  the  people  divest  themselves  of 

nothing,  10,  194,  391. 
The  Senate  and  sovereignty,  47. 
On  sovereignty  and  consolidation,  81. 
An  act  of  usurpation  not  obligatory,  and  not 

law,  177,  380. 
State  officers  bound  to  oppose  such  acts,  380. 

391. 

Character  of  the  federal  government,  10,  194. 
The  grand  check  upon  federal  usurpation, 

PATRIOTISM.  Love  of  one's  State  is,  34  et 
ser/.,395. 

That  which  the  fathers  felt  and  taught,  34, 
35,  395,  396. 

True,  is  fidelity  to  the  commonwealth,  57, 

394. 

PATTERSON,  WILLIAM.  Federal  Supreme 
Judge.  The  power  of  the  convention  of 
1787,  74. 

Member  of  the  convention  of  States,  97. 

Opposed  to  consolidation  ;  recognizes  sove- 
reignty of  States ;  federal  polity  acts  on 
persons  not  States  ;  instructions  to  make  a 
federal,  not  a  national  government,  74,  97, 
302. 

PENDLETON,  CHAN.  The  people  the  foun- 
tain of  all  power,  10,  107,  108,  368. 

They  must  delegate  power  to  agents,  10,  107, 
108,  366. 

The  universal  understanding  as  to  federal- 
izing,  47,  107,  108,  279,  280. 

The  State  sovereign  in  the  Union,  108,368. 

A  consolidated  government  inadmissible,  110. 

State  action  in  case  of  federal  usurpation,  389. 
PENDLETON,    GEO.     H.     Misconstruing    the 

pact,  174,  315. 
PENNSYLVANIA.     Federalizes  herself,  100. 

Date  of  ratification,  id.     Vote.trf. 

Her  sovereign  right  to  accept  or  reject. 
[McKean,]  102,  103. 

Associates  as  a  sovereign,  100,  101. 

Coxe  and  Wilson  on  ratifying  the  federal 
compact,  100,  102. 

Ordaining  words,  103. 

Origin  of,  276. 

From  province  to  State,  276,  277, 292. 

Authority  of  the  people,  277,  278. 

State  or  nation  completed,  278,  292. 

Declaration  of  rights,  278,  289. 

No  line  alienating  her  sovereignty,  279. 

Powers  delegated,  id. 

The  will  and  work  of  all  her  people,  279. 


PENNSYLVANIA—  continued. 
How  she  confederated,  id.,  292. 
Social  compact  of,  281,  282. 
Facts  in  her  political  history,  288,  289. 
Lordship  of  the  soil,  343,  344. 
Her  grants  of  federal  sites  and  jurisdiction, 

PEOPLE,  THE     All  political  power  is  inherent 

in,  10,  63,  82,  83. 

Govern  through  representatives,  10,  11. 
Divest  themselves  of  nothing,  10,  11. 
The  sovereign  power  resides  in,  and  never 

leaves,  11,  63,  101. 
Governments  the  agencies  of.  10,  191,  309, 

373. 
"As  composing  thirteen  sovereignties,"  11, 

108. 
Are  the  States  and  the  States  the  people,  11, 

60,  61,  145,  373. 

As  collective  body  called  the  State,  349. 
What,  have  achieved  as  States,  429. 
Govern  the    people,  296,  297.     Illustration, 

Averments  of  fact  in  regard  to,  55. 

Their  representatives  are  their  servants,  11, 
12,  109,  145. 

Give  power  and  can  take  it  back,  11,109. 

Erect  what  governments  they  please,  10, 11, 
374. 

The  fathers  on,  9-11,  308,  309. 

Govern  themselves  absolutely,  37,  63,  64. 

Sovereignty  in,  as  organized  societies,  37, 192, 
296,322.  '» 

As  sovereign  States,  37,  82,  83,  145,  273. 

"  We,  the  people,  means  the  people  as  or- 
ganized bodies  politic,"  60,  61,  63,  82,  83, 
87. 

"  We  the  people  of  the  United  States,"  45, 53, 
147,  148,  168. 

Politically  exist  and  act  only  as  States,  55, 
155,  156, 176,  301,  322,  374. 

Survival  and  function   of  their  will,  73,  302. 

Ordained  only  as  States,  77,  136,  153,  154. 
168,  176,  183. 

Have  parted  with  only  delegated  powers,  145, 
191  et  seq.,  302. 

As  commonwealths  distributed  powers,  181. 

Status  and  action  as  States,  136,  322,  328, 
373,  374. 

As  sovereign  commonwealths  and  as  subjects, 
179,  297 

Are  the  real  government,  191. 

As  organized  have  unlimited  power  of  amend- 
ment and  repeal,  192. 

Subjected  according  to  the  formula  of  the 
school,  397. 

Superior  to  constitutions,  303. 

Have  always  amended,  325,  326. 

Recognition  of,  as  sovereign  States,  332. 

Questions  Americans  cannot  evade,  369. 

Alone  are  sovereign ,  374. 

"  The  supreme  sovereignty  of,"  390. 
PERVERSION.     How  far  carried  by  "  the  gov- 
ernment," 9. 

Leading  tenets,  12. 

The  motives  with  the  promoters  of,  164, 184, 
211. 

Theory  of,  how  built  up,  181,  185, 186,  196, 

197,213,214.    Expose,  41,  42. 
PERVERTERS.     The  most  dangerous,  428. 
PHILADELPHIA  CONVENTION.    Proclaims 
"  the  absolute  supremacy  of  the  national 
government,"  12.  300. 

Admission  touching  the  war  and  the  union 

of  States,  331. 

PINCKNEY,  CHARLES.  All  power  is  from 
the  people ;  rulers  their  responsible  ser- 
vants, 115. 


598 


INDEX. 


PINCKNEY,  CHARLES  —  continued. 

The  States  equal  sovereigns  ;  their  authority 

absolute  and  uncontrollable,  116. 
The  system  a  federal   republic,   States    the 

pillars  of  the  government,  116. 
The  character  of,  and  pleas  for  Union,  id. 
PINCKNEY,  C.  C.   Location  of  the  sovereignty, 

States  the  parties  to  the  government,  117, 

States  confederate  on  equal  terms,  118. 

The  government  founded  on  equal  compact 
between  States,  id. 

Only  expressly  delegated  powers  in  the  gov- 
ernment, 10,  118. 

All  reserved  are  with  the  States,  id.,  id. 

Question  of  the  individual  sovereignty  of  the 

States,  118,  119. 

POLITICAL  PHILOSOPHERS.  Testimony  to 
the  federative  character  of  our  system, 
332,  347. 

POLITICIANS.  Panderings  and  perversions, 
162,  322. 

Unprincipled  partisanship,  165. 

Absurdities  regarding  sovereignty,  306,  307. 

False  teachings  at  second-hand,  318. 
POLITY,  THE  AMERICAN.    According  to  the 
expounders,  178,  179,  184. 

The  true,  is  government  of  States  by  them- 
selves, jointly  in  general,  severally  in  do- 
mestic affairs,  180,  293,  394,  395,  414. 

According  to  the  writers  of  the  Federalist, 
186. 

Essential  idea  of,  191. 

Exposition  by  James  Wilson,  303. 

Of  the  rising  States,  350,  351. 

Main  object  of  the  federal,  359,  360. 

Is  a  federation,  180. 

What  founded  on,  361. 

Symbolized,  365,  366. 

As  described  by  the  founders,  367,  368 

As  "  expounded  "  by  the  sons,  368. 

Summary  :  general  issue,  368,  369. 

The  States  and  people  are,  374. 

Rests  on  sacred  international  faith,  379,  427. 
POWER.     What  is  a,  in  a  procuration,  com- 
pact, etc.,  302  (note). 

The  sovereign,  resides  with  the  people,  10. 
11,  303,  328,  329,  374. 

The  people  are  the  fountain  of  all,  10,  306. 

The,  under  the  Constitution  always  in  the 
people,  11. 

The  dissolving  as  well  as  constituent,  belongs 
to  the  people,  73,  302,  330, 389. 

The  use  of  undelegated,  by  the  federal  gov- 
ernment, 376,377. 

Delegations  of,  by  the  States  in  the  Union 
may  be  withdrawn,  377, 388  et  seq. 

Pretence  of  a  restraining,  over  States,  360, 
361. 

Of  encroachment  on  reserved,  in  a  republic, 
376. 

When,  constrains  a  State,  freedom  is  gone, 
382. 

No,  of  restraint  or  constraint  given  the  fede- 
ral government,  384. 

The  rightful  central,  429. 
POWERS.     Alleged  distribution  of,  42, 172. 

All,  not  delegated  are  reserved,  85  et  seq.,\11, 
181,  191,  192  note,  379. 

All  federal,  derivative  and  remain  such,  150, 
379. 

Distribution  of,  by  the  States,  181. 

Alone  delegated,  191,  302. 

Grants  of,  subject  to  recall,  192,  364,  389. 

"Delegated  powers,"  "political  grants," 
"  powers  of  government."  vs.  sovereignty, 
192,216,217,316,341. 


POWERS  —  continued. 
"  Sovereign  powers,"  the  sense  in  which  the 

fathers  used  the  expression,  223,  224,  317 

318. 

And  rights  are  not  sovereignty,  306,  307. 
The  State's  repository  of:    Those  delegated 

and  those  reserved,  310. 
Illustration  and  corollaries,  with  authorities, 

310,  311. 

Delegated  to  the  United  States,  364. 
Federal  abuse  of  delegated,  312,  373,  380  et  seq. 
Federal,  delegated  for  defence  not  attack  of 

States,  382,  384. 

Perverted,  may  be  withdrawn,  389. 
PREAMBLE,  THE.     And  title  show  a  union  of 

distinct  commonwealths,  148,  168. 
And  Article  VII.  prove  States  sole  parties  to 

the  compact,  153, 154. 
Action  of  the  federal  convention  on,  201, 

202. 

And  Article  VII.  —  true  rendering  of,  322. 
PR1NGLE,  J.  J.    Redress  in  case  of  unconsti- 
tutional treaties,  119. 
PROVINCIALIZED.     The  States,  according  to 

the  "school,"  12,  162,  280,  293. 
An  indissoluble  union  means  States,  155,357. 
Government  "supremacy"  relegates  States 

to  their  provincial  condition,  361. 
A  suggestion,  369,  370. 

PUBLICISTS,  THE.     On  sovereignty,  7,  306. 
On  the  federal  republic,  332,  347. 

R. 

RANDOLPH,  GOV.    The  Government  a  crea- 
tion of  the  States,  109,  396. 

Right  to  coerce  States,  most  absurd  and 
ridiculous  of  all  doctrines,  396. 

On  the  accession  of  Virginia,  111. 

Plan  of  government  submitted,  in  federal 
convention,  198. 

Coercion  ought  not  to  be  directed  against  a 
State,  383. 

Federal  laws  to  operate  on  individuals,  not 
States,  383,  384. 

The  State  governments  and  federal  usurpa- 
tion, 392. 

RATIFICATION.    Done  by  States  to  federalize 
themselves,  77,  136, 167,  169. 

Was  adoption  —  the  only  acts  ordaining  and 
establishing  the  Constitution  and  govern- 
ment, 81, 124-126, 140,  154,  169,  204,  205, 
285,  286. 

Done  in  State  conventions,  each  free  to  re- 
ject or  adopt,  77, 136, 154, 167  et  seq.,  172, 

The  act  of  Massachusetts,  88  ;  of  Connecticut, 
90,  91 ;  of  New  York,  95 ;  of  New  Jersey, 
99;  of  Pennsylvania,  103;  of  Delaware, 
104,  105;  of  Maryland,  106;  of  Virginia, 
111.  112  ;  of  South  Carolina,'  120, 189 ;  of 
Georgia,  121 ;  of  New  Hampshire,  123  :  of 
North  Carolina,  132,  and  of  Rhode  Island, 
134. 

Ordinances  of,  received  by  Congress  as  proof 
of  the  establishment  of  the  compact,  126, 
127. 

On  receiving  nine  acts  of,  Congress  declared 
Constitution  completed,  id.,  364. 

Pretended,  of  the  Constitution,  142, 143, 172, 
173. 

Of  constitutional  amendments  provided  for, 
152. 

What  such  provision  necessitates,  id.,  325. 

Sufficed  for  establishing,  167. 

Was  by  States  only,  167, 169, 172,  189, 190. 

The  people  never  voted  on,  170. 

Garbling  the  ordinances  of,  182  et  seq. 


INDEX. 


599 


RATIFICATION  —  continued. 

Ordinances  of,  show  States  only  possible 
creators  and  delegators,  184. 

Exposition,  with  criticism  of  the  consolida- 
tion view,  188  et  seq. 

The  instrument  of,  was  an  ordinance,  not  a 
deed  or  grant,  189. 

The  ordinances  of,  only  delegate  powers  for 
self-government,  190, 191. 

Power  of  enactment,  and  that  of  repeal  com- 
mensurate, 188, 192,  357. 

Has  not  "  operated  to  pass  something,"  193, 
194. 

The  assenting  phrases  of  the  ordinances,  191, 
192,  204,  205. 

Used  in  the  sense  of  acceding  to,  205,  206. 

Of  the  first  ten  amendments,  326,  327. 

Of  the  llth  and  12th  amendments,  327. 

Of  the  later  amendments,  id. 

Barely  carried  in  several  States,  such  the  ap- 
prehension of  consolidation,  377. 

Of  the  Constitution  involved  no  transfer  of 
allegiance,  416,  417. 

Vote  of  New  York  was  in  confidence  of 
amendments,  94. 

Declaration  of  New  York  on  ratifying,  id. 

Declaration  of  \irginia,  112. 

Is  the  exercise  of  sovereignty,  108. 

Was  by  the  people  as  organized  societies,  or 
commonwealths,  127,  143,  172,  294,  297, 
300, 325. 

RAWLE,  W.    On  secession,  33. 
REBELLION.     "  Rebellion  or  not  ?  "    A  con- 
sideration of  the  question,  Were  the  con- 
federates rebels  and    traitors,  chaps.  V., 
VI. ,  pp.  28-40. 

REPUBLIC.     Government  in,  not    sovereign, 
32,  53,  54,  283. 

Suffrage  the  exercise  of  sovereignty  in,  7. 

Laws  regulating  suffrage  fundamental  to,  7, 

Averments  of  facts  as  to,  55,  56. 

Sole  cohesive  force  of  the,  56. 

A  society  of  people  for  self-government,  55, 

127,  411,  412. 

Principle  it  is  founded  on,  281. 
God's  form  of  polity,  id. 
Right  of  expatriation  vital  to,  282. 
Exists  by  the  social  compact,  283. 
Law  of  being  of,  288. 
The  germ  of,  292. 

Our  federal,  exists  through  the  States,  331. 
Government  in  a,  not  object  of  treason  or  al- 
legiance, 339. 

Government  of,  is  the  State  itself,  365. 
Encroachment  on  reserved  powers,  insidious, 

376. 

REPUBLICS.     The  basis  of  all,  352. 
"  REPUBLIC  OF  REPUBLICS.''  Propositions, 

56. 

Established  by  the  federal  compact,  186. 
The  growth  of  our,  348. 
A  society  of  commonwealths,  184. 
Vattel  and  Montesquieu  on,  22,  298.  332,  347. 
"  REPUBLICAN  FORM  OF  GOVERNMENT." 

The    understanding    of   the    fathers,   255 

et  seq. 

And  Art.  II. ,  first  federal  Constitution,  359. 
The  form  vs.  the  substance  [359,  note]. 
Obvious  meaning,  152  (note). 
REPUBLICANISM.     Germinal  idea  of  all,  348. 

Exhibit  of  our  representative,  29. 
RHODE  ISLAND.    And  federating,  134  et  seq. 
Constitution  rejected  on  popular  vote,  134. 
Adopted  in   convention,  amendments  being 

assured,  id. 

The  votes,  the  dates,  id. 
Washington  on  her  accession,  134, 135. 


RHODE  ISLAND  —  continued. 
She  crowns  the  union  of  sovereign  States,  135. 
Asserts  her  sovereignty,  freedom  and  inde- 
pendence in  the  Union,  135,  136. 
From  the  Revolution  was  absolute  sovereign, 

134, 135,  328. 
Declares  unconstitutional  acts  of  Congress, 

void,  380. 

RIGHTS,  BILL  OF.     See  Bill  of. 
ROUSSEAU,  J.  J.    The  republican  social  com- 
pact, 285. 
The  State,  id. 

S. 
SCHOFIELD,  GEN.    The  army  the  safety  of 

the  republic,  13. 

SECESSION.    A  chapter  on,  and  coercion,  22. 
The  formal  act  of,  37,  38. 
Was  by  States,  not  persons,  23.  36. 
Rightful  though  impolitic,  24,  25. 
Right  of,  inherent  and  inalienable,  27  [Note, 

Professor  Bledsoe  on  secession,  id.],  267, 

268. 
Not  inconsistent  with  the  Constitution,  23, 

24,  27,  423, 444. 

And  the  jus  gentium,  24,  26,  422. 
Right  of,  and   State   sovereignty   taken    for 

granted,  27,  32,  391,  389-391. 
Errors  regarding,  267  ft  seq. 
No  question  as  to  right,  for  40  years,  32. 
St.  George  Tucker  and  Wm.  Rawle  on,  32, 

33. 

Uncle  Sam  taught  Davis  and  Lee,  id. 
Will,  act,  and  criminal   intent  required    to 

make  crime,  36. 
How  declared,  37,  38. 
The  whole  argument  against,  dissipated,  95, 

301,302. 
The  power  to  dissolve  commensurate  with  the 

ordaining,  188,  330,  357,  381,  389  et  xeq. 
And  nullification  —  distinction,  261,  262. 
Conservative  mistakes,  267  et  seq.  [note,  p. 

358]. 
Right  of,  taken  for  granted  by  the  fathers, 

27,  33,  389-391. 

The  act  of,  and  the  right  thereof,  267,  268. 
There  can  be  no  forfeiture  of  the  right  of, 

268. 
Conservative  influence  of  the  admitted  right, 

id. 

The  late,  too  precipitate,  268. 
Right  to  abolish  or  repeal  involved  in  that  to 

amend,  286, 326,  357,  358, 376. 
Not  prohibited  by  the  recent  amendments, 

423 
The  right  spurned,  or  condemned  now,  268. 

[Note,  p  358]. 

Fallacies  of  certain  political  clerics,  290. 
Right  of,  conceded,  330,389  et  seq. 
Powers  granted  may  be  resumed,  389-393. 
Right  of,  is  above  the  Constitution,  380,  423. 
The  people  may  new-model  or  destroy  the 

government,  409. 

Naturally  States  can  undo  what  they  do,  423. 
Political  philosophy  of  the  right,  423. 
The  higher  moral  considerations  involved  in 

the  claim  of  the  right,  423,  424. 
SELF-DEFENCE.     Of    States,    Fathers    held 

right  of,  unlimited  in  the  Union :    How 

asserted,  388. 
The  States  the  highest  authority  on  the  right 

and  mode  of,  388,  408,  409. 
What  the  fathers  say  :  Dr.  Johnson,  of  Con- 
necticut, 388  ;  Ellsworth,  388,  396  ;    Mar- 
shall, 389,  391,  395,  396 ;  Chan.  Pendleton, 

389  ;  Madison,  389,  392  ;  Iredell,  389,  390  ; 

Roger  Sherman.  390:  Dickinson,  id.  ;  James 

Wilson,  390,  391 ;  Samuel  Stillman,  391 ; 


600 


INDEX. 


SELF-DEFENCE  —  continued. 

Judge  Parsons,  id. ;  Ames,  id. ;  Gov.  Ran- 
dolph, 892  ;  Hamilton,  392,  393. 

Last  reasoning  of  the  States,  393. 

The  militia  for,  392,  394,  402  et  sea. 
SELF-GOVERNMENT.    Of  .States  is  the  Ameri- 
can polity,  65,  66, 127,144  [Diagram],  147, 
292,  299. 

Alone  distinguishes  a  State  from  a  province, 
65,  127,  155. 

Federal,  exercised  by  the  States  through  the 
general  government,  125,  147,  373-375 

Intact  right  of,  is  the   States'  sovereignty, 

Right  of,  not  impaired  by  the  delegating  of 

power,  127,  281,411,412. 
An  indissoluble  union  of  States  fatal  to,  155. 
Only  divine  right  of  government  is,  281,  286, 


Capacity  for  and  right  to,  281,  286,  347. 

Is  exercised  functionally,  286,  411,  412. 

And  society  are  separate  ideas,  289,290. 

The  republican   idea,  symbolized,  294,  295, 
296,  297,  365,  366 

And  the  commonwealth,  348. 

In  States,  or  bodies-politic,  federating,  id. 

Of   man    the    foundation   of   the  American 
polity,  348,  361. 

Responsibility  for  the  use  of,  is  in  individu- 
als, id.,  380,  381. 

Rights  and  responsibilities  of,  408. 

Possible  only  in  the  collective  form,  409. 

Of  man  the  germinal  idea  of  all  republican- 
ism, 348,  408. 

SENATE,  THE.  Represents  the  sovereignty 
of  the  States :  Senators  partake  of  the 
quality  of  ambassadors,  81,  82,  238,  367, 
389,  390. 

SETTLER.  Status  and  rights  of,  in  the  terri- 
tories, 353. 

SEWARD,  VV.  H.  His  threat  to  keep  the  peace 
for  States,  14. 

His  little  bell,  id. 

Basis  of  our  federal  republic,  65,  331. 

Absolute  existence  of  the  States,  id. 

No  power  to  coerce  States,  178. 
SHERMAN,  ROGER.     The  government  insti- 
tuted by  sovereign  States,  46,  47,  89. 

Government  the  offspring  of,  and  subject  to, 

the  will  of  the  people,  89,  390. 
SHERMAN,  GEN.  W.  T.    The  army  and  "  the 

government  in  fact,"  13,  14. 
SOCIAL  COMPACT.    See  Compact,  Social. 
SOCIETY.     In  the  republican  form  of  govern- 
ment, governs  itself,  266,  275,  281. 

Object  of,  281,  408. 

Monarchical  and  republican,  281. 

Of  people  vs.  society  of  States,  282. 

People  in,  constitute  the  body  politic,  id. 

Actual  conditions  of  existence  of,  283,  284. 

Functions  of  organized,  284 

What  causes  society,  286,  408. 

The  constituting  of,  vs.  constituting  govern- 
ment, 288,  289. 

Exists  by  consent,  290,  291,  294. 

And  its  self-government  separate  ideas,  289, 
290. 

As  sovereign,  296. 

Republican  political,  408. 

The  State  the  only  political,  of  the  American 
people,  id. 

The,  called  the  commonwealth,  how  formed 
and  governed,  348,  409. 

Sovereignty  of  organized,  —  how  it  manifests 
itself,  301,  302. 

The  authority  for  ordering  its  political  con- 
ditions, 328,  329 

Our  only  monarch  for  allegiance  is,  414. 


SOCIETIES.    Self-government   of,  constitutes 

the  American  polity,  292,  293,  347. 
Are  sovereign,  21)4  et  seq. 
Of  people  ratify,  300. 

An  assemblage  of,  confederating,  347,  348. 
SOPHISTS,    POLITICAL.      Self-stultification 

331. 

SOUTH  CAROLINA.    Federalizes  herself.  115. 
Date  of  ratification,  vote,  124. 
Strong  opposition  and  much  discussion,  115 

et  seq. 

The  new  system  as  explained  by  its  chief  sup- 
porters, 115-119. 
A  convention  called  to  ratify  or  reject,  119, 

Ordaining-  words  of  the  ratification,  120. 

Amendments  demanded,  120,  121. 

Expose  of  Mr.  Curtis's  fallacy  concerning  the 

ratification  of,  188  et  seq. 

SOVEREIGN,  CORPORATE.    The  general  gov- 
ernment, by  perversion,  has  become  a  12. 

197. 
SOVEREIGN  MIND  OR  WILL.    Of  the  State 

survived  to  amend, 57,  58.  73, 147, 152  305. 
Attributes  and  functions  of,  28,  285,  294,  308, 

324. 

Where  dwells,  152,  285,  294,  308,  324. 
How  manifested  in  our  republican  govern- 
ment, 294,  295. 
Of  the  State,  and  the  federal  pact,  301,  302, 

305,  357,  358. 
"  SOVEREIGN  POWERS."     Incorrect  phrases 

of  the  expounders,  306,  307,  314-316. 
No,  in  the  Constitution,  305.  310  et  seq.,  314, 

315,  316,  317,  324. 
An  excusable  misnomer  of  the  fathers,  317, 

818 
SOVEREIGNTY.    American,  when  and    how 

originating,  3,  4,  73,  276  et  seq.,  328,  329, 

335,336. 
Distinguishes  a  State  from  a  colony,  province, 

etc.,  3, 127,  215,  216,  292,  3)9,  335. 
Of  the  States  acknowledged  by  England,  4, 

328. 
Asserted  by  each  State  and  guaranteed  by  all, 

4,  142,  148,  151,  152,  268,  259,  359,  377, 

388. 
Declared,  eo  nomine,  to  be  in  the  States,  31, 

142,  217. 

A  unit  and  indivisible,  3,  305,  306,  308  et  seq. 
Does  not  consist  of  powers  or  rights,  3,  147, 

192  [and  note],  216. 
Inherent  in  the  people  as  organized  societies, 

10, 11,  273,  294,  307,  374,  390. 
Dwells  in  the  societies  after  as  well  as  before, 

making  constitutions,  10,  11,  127,  190,  191, 

329,  374,  390. 

Governmental,  in  a  republic  a  solecism,  324. 
The  government  from  agency  has  become  a 

corporate,  12,  197,  215. 
Right  of  secession  natural,  and  involved  in 

State,  32,  391. 
No  question  for  forty  years  of,  State,  and  the 

included  right  of  secession,  32,  33. 
Seat  of,  according  to  the  fathers,  10,  11,  42- 

48. 

No  exercise  of,  in  a  democracy  but  by  suf- 
frage, 7,  17. 

Is  essentially  a  predominating  force,  4, 147. 
Not  caused  by  declarations  or  acknowledg- 
ments, etc.,  3  216,  217. 
Of   England    remains   at    home,  but    sends 

agents  everywhere,  3,  306. 
Absurd  views  of,  36,  37,  192,  193,  299,  314 

et  aeq. 
In  "  the  government "  no  such  thing  as,  11, 

63,  64,  238,  247,  273,  324,  333. 
Predicable  only  of  organization,  37, 147. 


INDEX. 


601 


SOVEREIGNTY  -  continued. 
Of  the  States  and  the  tenth  amendment,  46, 

86,  377-379. 
Cannot  be  predicated  of  government  in  a 

republic,  37,  53,  54,  283,  324. 
Solecistic  absurdities,  37,  307,  308. 
Of  the  States,  and  the  second  article  first  fed- 
eral Constitution,  46,  86,  142. 
Ratifying,  the  exercise  of  State,  108. 
What   is  meant    by,  127,  283,  305-308,  319 

el  sfq. 
Is  inalienable  and  indivisible,  142,  147,  193, 

307. 
How  and  when,  of  State  lost,  142,  216,  286, 

328,  329,  330. 
Vs.  government,  142,  192,  283,  306  [note,  p. 

192]. 

States  the  real,  147,  302,  305,  330,  331. 
Is  above  and  beyond  government,  147,  216, 

217,  299. 

Exercise  of  its  rights  of  government  is  func- 
tional, 147,  306,  309,  310  et  seq. 
Not   to  be  confounded  with  the  powers  of 

government,  147,  192,  283,  305,  306. 
Alleged  ceding  of  a  part  of,  192  et  seq.,  307, 

308. 
Is  not  diminished  by  delegating  powers,  4, 

191,  192, 194,  195,  310-312. 
Not  dependent  on  compacts,  4,  216,  217. 
In  the  incorrect  sense  of  government,  224, 

283. 

Guaranty  of,  to  each  State,  258,  259,  359. 
Cannot  be  subjected  to  its  own  delegations, 

295,  296,  310  et  seq. 
Supreme,  and  always  the  same,  298. 
No,  in  the  Constitution.  147,  301,  302,  305, 

324. 

Society's,  its  sway,  adjuncts,  etc.,  308. 
Divided  [Illustration],  308,  309. 
Not  transferred,  testimony  of  the  fathers,  317, 

318. 

Not  subject  to  reservation,  319-322. 
Mr.  Curtis's  admissions,  328,  329. 
When  lost  by  the  State?    Points  that  must 

be  met  in  the  inquiry,  330. 
States  have  exclusive  possession  of,  209,  210, 

330,  331. 

Of  the  soil,  62,  63,  338-340,  342  et  seq. 
That  alleged  "  understanding  "  as  to,  336. 
"The     independent,     of     their     respective 

States,"  238. 
States  held  together  by  a  central,  according 

to  the  "  Nationalists,"  144,  197. 
In  the  new  States :  See  NEW  STATES. 
SPA10HT,  R.  D.    On  the  powers  and  work  of 

the  federal  convention,  130, 131,  225. 
The  Constitution  a  mere  proposal,  id.,  id. 
The  new  system  federal,  adhesion  voluntary, 

id.,  id. 

SPENCER,  JUDGE.     Federal  laws  must  oper- 
ate on  individuals,  not  States,  384. 
Coercion  of  States  destruction  of  the  govern- 
ment, id. 
SQUATTER  SOVEREIGNTY.    The  fallacy  of, 

322. 

Its  absurd  pretension,  353. 
STATE.    ' '  What  constitutes  a,"  348. 
The  word  as  applied  in  the   Constitution, 

149,  169,  354. 
As  distinguished  from  a  colony,  province,  etc., 

3,65,215,216,332,333. 
la  the  citizens  thereof,  28,  29,  394,  397  et  seq. 
Formed  by  the  social  compact,  28,  275,  282, 

283. 

Sole  object  of  treason,  30,  394,  413  et  seq. 
Sole  object  of  patriotism,  34,  35,  395,  396. 
The  fathers  on  love  of  one's,  35,  36,  395, 


STATE  —  continued. 

The  word  was  convertible  with  State  govern- 
ment, 181,  247. 

The  genesis  of  a,  273  et  seq.,  278. 

Meaning  of,  in  the  American  polity,  24,  73, 
149,  169,  i70. 

Or  nation,  65, 149,  169,  279. 

Each  American,  had  every  characteristic  of  a 
nation,  284. 

Continued  existence  of  the,  149,152,286,  325, 
328. 

Acts  functionally  and  voluntarily,  73,  286, 
300. 

Self-preservation  a  duty  of  the,  257,  258, 
355  et  seq.,  394,  408,  409. 

Rules  in  all  things,  292. 

Grades  of  authority  in,  294,  295,  300,  301. 

Source  of  all  authority,  301. 

The  alleged  loss  of  sovereignty,  169,  300,  328 
et  seq.,  330. 

The  word  as  applied  by  the  fathers,  149,  169, 
333. 

Is  the  ultimate  arbiter,  355  et  seq. 

Right  of  self-defence,  355  et  seq.,  394,  408, 
409. 

Duties  of  the,  under  reciprocal  relations, 
357. 

The  political  suicide  of  a,  id.,  416,  417. 

When  federal  agency  may  enter  a,  vi  et 
armis,  360. 

Endows  her  members  with  suffrage,  29. 

May  command  the  armed  defence  of  her  citi- 
zens, 373,  394,  403  et  seq. 

Is  the  palladium  of  private  and  personal 


Cannot  be  coerced  even  judicially,  385,  386. 
And  the  federal  judicial  powers  :  the  eleventh 

amendment,  386,  387. 
The  government  of  a,  stands  between  public 

liberty  and  federal  encroachment,  391-393. 
Has  original  and    supreme  control  of   her 

militia,  394,  403  et  seq. 
Defending    one's,  is    self-defence,  394,  408, 

409.       . 

The   American,  status,  political  action,  at- 
tributes and  prerogatives,  408,  409. 
Federal  jurisdiction  in,  and  legal  force  of  the 

treason-clause  flow  from  her  sovereignty, 

415. 
The,  and  citizenship,  allegiance  and  treason, 

the  early  faith  regarding,  419  420. 
Makes  and  unmakes  the  offence  of  treason, 

422,  423. 

Withdrawal,  the  natural  action  of  an  un- 
chained, 423. 
Withdrawal  is,  as  to  a  State,  the  natural  and 

functional  act  of  a  free  being,  423,  424. 
The,  and    sovereignty,   secession,  coercion, 

federalization,   the  Constitution    and   the 

Union.   [See  under  those  respective  heads.] 
STATEHOOD.     To  remain  intact,  74. 
Massachusetts,  fear  of  losing,  85,  86. 
STATES.    "  Free,  sovereign ,  and  independent," 

4,61,132,135,273. 
Sovereign   American,  from   British  colonies, 

3,4,  73,328,329. 
Regarded  as  the  sole  source  of  power  by  the 

Constitution,  22,  75, 126, 137-139, 140,  147 

et  seq.,  152,  153. 
Senators,     representatives,    and     president 

chosen  by,  22, 126,  149,  150,  179, 180. 
No  constitutional  coercion  of,  23,  178,  309, 

373,  382  et  seq. 
Equal  and  voluntary,  joined  in  federal  league, 

23, 136, 140,  148,  155, 156,  286,  297,  300. 
Constitution  making,  seceding  and  warring 

were  by,  23. 
Sophistry  of  not  coercing,  but  persons,  id. 


602 


INDEX. 


STATES  —  continued. 

No  distinction  in  the  Constitution  between 
foreign  and  domestic,  24,  149. 

The  southern,  in  seceding  exercised  an  indis- 
putable right,  24. 

The  southern,  fought  for  independence,  the 
northern  for  empire,  id. 

The  northern,  coerced  the  southern  back  un- 
der the  .;'«$  gentium,  24,  25. 

Unpleaded  pleas  of  the  coercing,  25. 

The  principle  established  that  seceding,  may 
be  coerced  back,  28. 

Secession  and  war  not  by  citizens,  but  by,  28, 
29. 

Make  voters  as  means  of  ascertaining  the 
collective  will,  29, 238. 

Suffrage  exclusively  given  and  controlled  by, 

The  ultimate  authority  for  the  citizens  to 

obey,  30. 

Treason  a  crime  against,  id. 
Coercion  of,  is  war,  31,  75,  383  et  seq. 
The  only  nation  is  composed  of,  31,  32,  179, 

297,  414. 

Alone  responsible  for  secession  and  war,  37. 
Alone  punishable,  39,  40. 
Severalty  and  sovereignty  of,  recognized,  45- 

48,  82,  153,  350,  357,  358. 
Alone  delegate  and  reserve,  54,  155,  181. 
Alone  amend,  57,  147,  152,  325. 
The  people  politically  exist  and  act  only  as, 

61,  65, 145,  155,  156. 
They  are  the  people,  and  the  people  the,  61, 

145,  155,  156,  176. 
The,  always  above  government,  61  et  sea.. 

127, 153, 176,  299,  373. 
Only  by  their  will  is  the  Constitution  law  in, 

64,  77,  150,  154, 155. 
A  clear  conception  of  the,  65,  66,  286. 
As  distinguished  from  provinces  and  coun- 
ties, 65,  66,  127,  292,  332,  333. 
Motives  of,  in  establishing  the  Union,   73, 

136,  145,  146  et  seq. 
Are    distinct    entities,    73,    145,    286,    335, 

336. 

Are  so  many  republics,  127,  136,  275, 297. 
-     To  remain  intact,  74,  127,  136,  147,  151,  152, 

169,  325. 
The  chief  aims  of,  in  federating,  75,  76, 136, 

355- 
The  principal  changes  in  the  federal  polity 

contemplated  by  the,  86. 
Federalized,  not  nationalized,  themselves,  76, 

144,  300. 

Gave  existence  to  the  government  and  feder- 
alized  themselves,  76,  77, 127, 168, 169,292, 
293,  362. 

Are  sovereigns  in  the  Union,  127,  142,  147, 
151,  305,  325  et  seq.,  335,  342. 

Ordained  the  Constitution  and  gave  the  gov- 
ernment its  being,  127,  136,  137,  140,  144, 
145  [Illustration],  385,  386  [Illustration]. 

Government  by,  jointly  and  severally,  127, 
147,  289,  304,  365. 

Proof  of  their  continued  sovereignty,  86, 142, 
147,  152,  285,  297,  328  et  seq.,  374. 

Did  not  commit  suicide,  127,  149,  216,  317. 

Their  constituting  the  general  government 
was  a  functional  act,  136,  285,  286,  306, 
322,  323. 

Are  the  real  sovereignty  and  government, 
142,147,  194,195,299,414. 

No  evidence  of  their  consolidation,  or  change, 

145,  149,  156,  169, 179, 194,  329,  330. 
Have  absolute  right  of  self  government,  63, 

73,  127,  133, 147,  281,  286,  293. 
Assert  and  hold  lordship  of  the  soil,  62,  63, 
337,  338-340,  342  et  seq. 


STATES  —  continued. 

Pre-existent  and  supreme,  42, 142, 149  154 

169,  328,  416. 
All  elections  and  powers  are  of,  149,150, 179, 

The  restrictions  on,  154, 172. 

Are  named  in  the  Constitution,  174,  175. 

The  same  sovereign,  federalized  that  com- 
posed the  confederation,  112, 142, 144,  152, 
153,  169. 

Did  not  subject  themselves,  but  their  citi- 
zens, to  the  supreme  law,  125,  176-178,  383 
et  seq. 

As  parties  to  a  constitutional  compact,  ac- 
ceded to  it  severally,  204  et  seq. 

Sovereignty  of,  is  above  the  Constitution, 
147,  216,  217. 

Webster's  concession  and  Massachusetts's 
stand,  275,  279,  286,  330,  331. 

Voice  of  American  History  regarding,  286, 
292-294, 355. 

The  united,  are  the  government,  294,  299, 
373-375. 

"  National  sovereignty  "  cannot  be  enforced 
upon,  299,  360,  361. 

Respective  action  of,  upon  State  and  federal 
constitutions,  300,  301  [Illustration]. 

"Expounders'"  "limited  sovereignty"  of 
the,  314-316  et  seq. 

Are  sovereigns  yet:  established  facts,  325, 
326. 

Equal  sovereigns  in  convention  of  1787,  328. 

Claim  sovereignty,  independence,  and  free- 
dom, 216,  217,  330,  333. 

The  absolute  existence  of  the,  constitute  the 
republic,  331. 

The,  alone  have  inherent  rights  and  original 
sovereignty,  333,  355. 

What  the  fathers  assumed  of,  and  aimed  to 
secure  for,  355,  376,  377,  385,  393, 395,  396, 
414. 

Guaranty  of  all  to  protect  each,  359,  360, 
415. 

Right  of  self-defence,  355,  358,  373,  388  et  seq. 

Are  the  people  and  polity,  292,  293,  373-375, 

Self-defence  vital  to  small,  384. 

Jurisdiction  of  suits  between,  and  by  indi- 
viduals ageinst,  485-487. 

The  fathers  on  self-defence  of,  338  et  seq. 

Are  the  people  the  nation  and  the  govern- 
ment, 414. 

Articles  of  the  early  faith  regarding,  419,  420. 

Can  undo  what  they  do,  423. 
STATES,  THE  NEW.    Northwestern  admitted 
with  "same  rights  of  sovereignty,  freedom, 
and  independence  with  the  other  States," 
217,  333. 

Sovereignty  in  the  [other],  347  et  seq. 

Origin,  growth,  and  increase  of,  347-349. 

Absolutely  equal  with  the  old,  346,  348  et  seq. 

Formation  of:  Rationale,  348,  349,  352,  3u3. 

The  constitutional  provision  for  the  admis- 
sion of:  evident  intent,  151,  152,  354. 

Status  and  rights  of  a  settler  in  the  nascent, 
353. 

Whence  arises  the  sovereignty  of,  217,  333, 
353,354. 

The  colonies  as  rising,  3,4,  349,  350  :  their 
severalty  and  different  forms  of  polity,  3,  4, 
349-351. 

STEPHENS,  ALEX.   H.    His  "War  between 
the  States."    Note,  p.  77 

Confused  notions  of  powers  and  sovereignty, 
id.,  306,  307,  314,  315,  319-322. 

On  the  subjection  of  the  States  to  their  own 
"supreme  law-making "  power,  295,  299, 
319  et  seq. 


INDEX. 


603 


STEPHENS,  ALEX.  H.  —  continued. 

On  Webster's  qualified  State  sovereignty,  314, 
315,  319. 

His  view  of  sovereignty  at  variance  with  his 

general  theory,  318,  319. 

ST1LLMAN,  SAMUEL.  Remarks  in  the  Massa- 
chusetts convention  on  the  constitution 
Congress,  84,  891. 

STORY,  JUSTICE.  One  of  the  founders  of  the 
"  Massachusetts  school,"  16. 

As  an  expounder,  52,  162. 

His  one-sided  authorities  and  quotations,  88, 
1(32-164. 

On  the  "  powers  granted  under  the  Constitu- 
tion," 112, 113. 

The  phrase,  "  the  more  perfect  Union,"  144. 

Interpreting  Article  VI.,  152,  153. 

Mangled  quotation,  and  delusive  argument, 
173, 182,  183,  185, 197, 199,  289. 

Succeeded  Dane  as  head-master  of  the  Mas- 
sachusetts school,  162. 

His  theory  of  the  Constitution  based  on  the 
ancient  false  charges,  163,164. 

Ignored  the  refutation  of  those  charges,  id., 
id. 

Possible  reasons  for  his  centralizing  expound- 
ings, 164. 

The  Constitution  not  a  compact ;  the  people 
made  a  Constitution,  not  a  confederation. 
167,168,  280  etseq.,  313, 314. 

Historical  facts  ignored,  167-169. 

The  apparent  motives  thereof,  170. 

His  "  New  Article,"  172, 173. 

Garbling  of  the  ratifications,  182. 

Obvious  purpose  of  the  garbling,  184. 

A  broad  admission,  184. 

Gross  garbling  of  the  Federalist,  185. 

Exposure  of  the  artifice,  id. 

"  National  "  and  "  supreme  "  resting  on  false 
quotation  of  records,  197-200. 

The  nation  or  State,  279. 

Alleged  second  social  compact,  and  forming 
of  the  nation,  288,  289  et  seq. 

Subterfuge  as  to  the  social  compact  of  the 
Constitution,  289. 

Each  state  sovereign  except,  etc.,  313,  314  et 

seq. 

SUFFRAGE.  Control  of,  by  the  people  vital  to 
liberty,  7, 17,  18. 

Character  and  purpose  of,  7,  29. 

Montesquieu  on,  id. 

Original,  in  the  people  composing  society,  7, 

Derivative,  in  those  endowed  by  the  society's 
constitution  of  government,  7, 29. 

Usurped  control  of,  17, 18. 

Is  exclusively  with  the  States,  29,  149,  150 
SULLIVAN,  GOV.     Government  and  coercive 
powers,  295. 

Leads    the   agitation   for    the     adoption  of 

amendment  XI.,  386,  387. 
SUPREMACY,  ABSOLUTE.     Claim  of,  for  the 
general  government,  12-14, 295-297  et  seq. 

[See  "  Absolute  Supremacy."] 
SUPREME  COURT,  U.  S.    Declare  there  was  a 
change  from  a  confederacy  to  another  sys- 
tem, 160, 167,  385. 

On  questions  not  provided  for  in  the  Consti- 
tution, 275,  358,  359. 

The  government  that  of  the  people,  295,  296. 

"  Dominion,"  "  submission,"  etc..  dicta.  296, 
300,358. 

The  federal  agency  is  "  a  government  of  the 
States  in  their  political  capacity,"  300. 

The  political  community,  296,  338,  339. 

Government  determines  the  scope  of  its  pow- 
ers, 300,  368. 

Its  creation  and  jurisdiction,  386. 


SUPREME  COURT,  U.  S.  —  continued. 
Suits  against  States  before  :  the  llth  amend- 
ment, 386,  387. 

"SUPREME  LAW."    The  "  School's  "  extrava- 
gant contention,  53. 

Only  by  the  sovereign  wills  of  States  was  the 
Constitution  made  the,  32,  64,  77,  120,  172, 
337,  342  et  seq. 

Perversion  of  the,  clause,  53, 142,  143,  176. 
In  what  sense  the  Constitution  is  the,  176, 

177. 
How  the  fathers  regarded  it,  177,  178. 

The  clause  simply  the  enunciation  of  a  prin- 
ciple of  international  agreements,  178. 

Absurdity  of  the  consolidationists'  claim,  id. 

Right  to  subjugate  under,  id.,  215. 
SYSTEM,  OUR  POLITICAL.     One  of  checks 
and  balances,  13, 363. 

Change  by  usurpation,  13, 19,  58,  334. 

Original  charges  against,  made  "expound- 
ings," 16,  53,  159-161. 

As  modified  by  the  war  of  secession,  25,  27. 

Testimony  of  the  writers  of  the  Federalist  as 
to,  42,  43,  178, 179,  185-187,  239-241. 

The  inquiry  is  one  of  facts,  42,  50,  51,  166, 
274  et  seq. 

An  expanding  autonomy:  provides  for  "in- 
crease by  new  associations,"  347,  348. 

As  the  fathers  viewed  it,  45-48,  308,  309,  367, 
368. 

Character  fixed  from  the  beginning,  41,  42  et 
seq  ,  141. 

Exposition,  74,  75,  136, 137,  140  et  seq. 

States  the  be-all  and  end-all  of,  75,  148,  149, 
150,  155,  156,  325. 

"  A  federation,"  "  confederated  republic,"  or 
"republic  of  republics,"  75,  76,  136,  137, 
140,  141, 145,  202,  280,  300,  301. 

States  accede  to,  204-207. 

The  only  acts  giving  existence  to,  136,  137, 
140,  296,  297,  357,  358. 

True  presentation  of  [C/iart],  140,  144, 145. 

Was  a  fact  before  the  government  existed, 
368, 369. 

Tripartite  character  of  the  government  in, 
144, 145  [Chart],  362  [Diagram]. 

Identity  of  our  present,  with  the  confedera- 
tion, 144-146. 

States  remain  the  sovereigns  of,  153, 169, 199. 

According  to  the  Constitution,  147,  154,  155. 

Politicians  have  set  up  a  false,  162,  173, 174. 

Chief  Justice  Parsons's  characterization  of, 
194. 

Every  "national"  word  and  idea  excluded 
from  our  federal,  200,  201. 

Not  changed  by  the  war,  274. 

Rationale  of,  349  and  note  :  361  note. 

As  contemplated  [Diagram],  297. 

According  to  James  Wilson,  303. 

Rulers  in,  are  "substitutes,"  agents,  "  sub- 
jects," etc.,  310,  312. 

What  was  assumed  of  the  States  in  the  de- 
vising of,  355. 

A  definite  conception  of,  362. 

Grades  and  impartations  of  authority  in,  294, 
295,301,302,365,366. 

What  the,  was  in  1789,  369. 

Not  changed  from  federation,  385. 

Key-note  of,  433. 

Growth  and  development  theory  of,  delusive 
and  pernicious,  141,  266,  267. 

T. 

THACHER,    MR.      States    sovereign    in    the 

Union,  82. 
TOCQUEVILLE,  DE.     On  the  union  of  the 

States,  332. 


604 


INDEX. 


TRAITORS.  The  confederates  neither  rebels 
nor,  28-30. 

Davis  and  Lee  not,  36-40,  402. 

Who  were,  if  any,  40, 155. 
TREASON.     Is  against  the  State  or  States,  30, 
339,  394,  410,  413,  424  et  seq. 

Coercion  of  States  by  the  general  Govern- 
ment is,  id.,  31,  384. 

Exposition  of,  clause  in  the  federal  Consti- 
tution, 29,  30,  413  et  seq. 

Claim  of  "absolute  supremacy  "  is,  155,  351. 

State  defence  by  the  citizen  not,  373,  394, 
396,  409,  410. 

Vitally  important  corollaries,  394. 

Is  involved  in  federal  usurpation,  361,  376. 

Clause  iu  the  State  Constitutions,  400,  401. 

Mr.  Curtis's  perversion  of  the  treason  clause, 
413. 

Only  purpose  of  the  treason  clause,  414. 

The  State  has  the  original  right  to  punish,  id. 

As  provided  for  in  the  State  and  federal  Con- 
stitutions, 414. 

The  general  Government  cannot  be  the  object 
of,  414,  415. 

The  end  of  argument,  415. 

Federal  jurisdiction  of,  derived  from  the 
State,  414,  415. 

Against  the  United  States  is  a  violation  of 
allegiance  to  the  State  or  States,  415,  424. 

Testimony  of  Virginia,  415,  416  ;  of  Massa- 
chusetts, 417,  418. 

Conclusive  proof  from  Vermont  and  Ken- 
tucky, 418,  419. 

Summary  as  to,  citizenship  and  allegiance, 
the  early  faith,  419,  420. 

Bases  of  the  conclusions  as  to,  citizenship 
and  allegiance,  421. 

Is  against  society,  421,  422. 

Disunion  ends,  422. 

The  State  makes  and  unmakes  the  offence, 
423. 

A  necessary  condition  of  the  offence  as 
against  the  United  States,  424. 

The  power  that  laid  the,  clause  on  her  citi- 
zens in  1788,  could  annul  it  in  1861,  id. 
TUCKER,  ST.  GEORGE.     On  secession,  32,  33. 

u. 

ULTIMATE  ARBITER.  The  State  on  all  that 
touches  her  existence,  integrity,  and  sove- 
reignty is,  355  et  seq.,  358,  359. 

Wherein  and  in  what  capacity  the  federal 
agency  may  act  as,  355,  356. 

Constitutional  exposition  in  the  light  of  po- 
litical philosophy  and  facts,  357,  358. 
UNION.    A  federation  of  sovereign  States,  42 
et  seq.,  48,  127,  136, 140, 144,  145, 147, 155, 
156, 184. 

Involves  the  idea  of  competent  States,  46. 

Is  a  voluntary  association  of  sovereign  States, 
46,  67,  76,  77, 140, 141,  145,  156,  328,  330, 
331,  358. 

And  liberty,  68,  220. 

Motives  of  establishing  the,  73, 136,  196,  197 

ChW  aim  of,  75,  76, 152,  355. 

The  "more  perfect  Union"  of  1788,  76,  144, 
145,  146. 

Consolidation  of  the,  80,  81,  109,  110. 

And  the  confederation  —  identity  of  charac- 
ter, 144,  145  [Illustration], 

The  constituents  of  both  the  same,  145. 

They  were  both  federal  Unions,  frf.,  201,  202. 

When  came  involuntariness  to  make  it  indis- 
soluble, 142,  145,  286,  358,  376_. 

Shows  a  complete  federation,  145. 

Necessarily  voluntary,  156,  221,  415. 


UNION  —  continued. 

An  indissoluble,  degrades  States  to  provinces 
155,  219,  358. 

Founded  solely  on  amity,  mutual  interests, 
and  safety,  66,  67,  156,  384. 

Reasons  for  making  the  new,  196,  197. 

Our  duty  towards  the  true,  220. 

Purport  of  the  plan  of,  according  to  the  fed- 
eral convention,  198,  199. 

The  "  national ;'  idea  excluded,  200  et  seq. 

The  convention  submitted  their  scheme  as  a 
federal  plan  of,  202. 

The  States  "  acceded  "to,  204-207. 

Involuntariness  of,  and  war,  233  235. 

The  perverters'  corporate  sovereignty ,  12, 13, 
68,  219. 

Object  of,  was  government,  not  forming  so- 
ciety, 284,  288. 

Must  be  voluntary  [Seward],  331. 

What  the  general  government  first  assumes, 
and  thence  concludes  regarding,  360. 

What  it  is  not,  382. 

A  coercive,  provides  for  its  own  destruction, 
'     383. 

Inter-State  faith  the  sole  basis,  415- 

Plain  common  sense  as  to,  220,  221,  430. 
UNION-WORSHIP.     Fanatic  devotion  instead 
of  obedience,  35,  36,  219,  220. 

The  underlying  motives,  220. 
"  UNITED  STATES."   What  the  phrase  meant, 
147,  148, 170,  176. 

It  disposes  of  the  expounders'  "nation,"  179. 

Why  they  avoid  the  phrase,  220. 
"  UNITY  OF  GOVERNMENT."     What  Wash- 
ington meant  by  the  phrase,  362. 

Apprehensions  and  precautions  of  the  fath- 
ers, 363. 

No  "unity  of  government"  as  assumed,  in 

our  system,  id. 
USURPATION.    A  change  by,  threatens,  334. 

Federal,  is  involved  in  claim  of  absolute  su- 
premacy, 155. 

Government  control  of  the  political  people, 
361. 

Federal,  to  be  resisted,  373,  380  et  seq. 

Tendency  and  end  of  federal,  376. 

An  act  of,  is  not  law,  380,  391. 

State  governments  a  check  upon  federal,  391. 

V. 
VARNUM,  COL.    The  States  to  confederate, 

81. 
VATTEL.    Jus  gentium  as  to  our  inter-State 

or  civil  war,  39. 
The  nation  or  State,  65,  279. 
Obligations  of  the  social  compact,  284. 
The  confederacy  of  sovereign  States,  298,347 
Sovereignty,  306. 

The  American  federal  republic,  332. 
VIRGINIA.     Federalizes  herself,  107,  415,  416. 
Vote  on  ratification.     Date,  107. 
The  ratifying  convention,  high  character  of 

its  personnel,  id. 
Substance  of  the  charges  of  Henry,  Mason, 

and  others,  against  the  proposed  federal 

plan,  id. 
Replies  of  Pendleton,  Madison,  Marshall,  etc., 

107-109. 
"  Consolidation  "    variously     apprehended, 

109, 110. 

A  consolidated  government  inadmissible,  110. 
Mode  of  ratification  disproves  the  charge, 

id. 
Ratifies  as  a  sovereign  State  for  herself,  111, 

112,  415. 

Enacting  words  of  her  ordinance,  111,  112. 
Distortions  of  the  perverters,  112, 113. 


INDEX. 


605 


VIRGINIA  —  continued. 

Demands  the  amendments  to  the  federal 
Constitution,  112. 

Declares  government  functionaries  trustees 
and  agents,  112,  113. 

Asserts  in  her  ratification  that  delegated 
powers  may  be  resumed,  id.,  389. 

And  Massachusetts:  a  parallel  and  a  con- 
trast. 113,  1H. 

Asserts  lordship  of  the  soil,  62. 

Terms  of  cession  of  federal  sites,  63,  344. 

Testimony  as  to  citizenship,  allegiance,  and 
treason,  415,  416. 

w. 

WAR,  THE.  Neither  the  facts  of  our  political 
history  nor  the  principles  of  our  polity 
altered  by,  274. 

WASHINGTON.  Power  always  in  the  people, 
11,  227. 

Representatives  our  creatures  and  servants, 
11,227. 

The  ties  of  Union,  66,  67,  234,  235. 

Powers  in  the  federal  government  an  "  exten- 
sive trust,"  75,  223,  224. 

The  consolidation  of  the  Union,  110, 223, 224. 

Vs.  Webster,  132,  133. 

On  the  accession  of  Rhode  Island,  134. 

Responsibility  of  representatives,  227. 

The  Constitution  a  "compact  or  treaty," 
206,  226,  230. 

States  "  acceded  "  to  the  Union,  206,  207. 

The  Union  a  "  new  confederacy,"  207,  229, 
230. 

Against  the  "expounders,"  222,  223. 

Training  and  associates  contrasted  with  Lin- 
coln's, 222. 

Was  a  State  sovereignty  man,  id. 

Extracts  from  his  writings,  223  et  seq. 

On  the  new  frame  of  government,  223-226. 
227-229 

Was  the  substitution  of  one  form  of  federal 
government  for  another,  225. 

The  necessity  for  Union,  227. 

States  ratify  or  reject,  228. 

Powers  in  the  general  government,  id. 

A  bill  of  rights  nugatory,  229. 

Solicitude  for  the  accession  of  the  States,  227, 
221),  230. 

"  A  confederated  government "  under  the 
new  compact,  230. 

Constitutional  views  expressed  while  in  the 
presidency,  231  et  seq. 

The  States  and  the  Union,  231,  232,  233,  234. 

Growing  sectionalism,  232,  233. 
"  Constitutional  limitations  "  and  the  policy  of 
the  government,  233. 

Extracts  from  his  Farewell  Address,  with 
exposition,  234-237. 

Unity  of  government,  235,  362. 

The  Union  and  the  government,  235,236, 237. 

Approval  of  Wilson's  defence  of  the  Consti- 
tution, 237,  238. 

Indorses  Dickinson's  views  of  the  new  sys- 
tem, 238,  239. 

Commends  the  papers  on  the  Federalist,  239. 

Summary  of  his  views,  241 
"  WE,  THE  PEOPLE.''     Of  the  United  States 
means  "  several  and  separate  sovereignties 
joining  in  a  confederacy,"  45,  63,  147,  148, 
168,  201. 

Means  the  people  as  organized  bodies  politic, 
66,  82,  83. 

Means  Massachusetts,  82 ;  means  Connecti- 
cut, 90  ;  New  York,  95 ;  New  Jersey,  98 ; 
Pennsylvania,  102,  103;  Delaware,  104; 
Maryland,  105,  106 ;  Virginia,  111 ;  South 


"WE,  THE  PEOPLE"—  continued. 

Carolina,  119,  120;  Georgia,  121;  New 
Hampshire,  123  ;  North  Carolina,  132  ; 
Rhode  Island,  134. 

What  the  phrase  meant  according  to  Gouver- 
neur  Morris,  45 ;  Tench  Coxe,  46  ;  Dr. 
Charles  Jarvis,  S3  ;  Samuel  Stillman,  84  ; 
Charles  Turner,  id. ;  Theophilus  Parsons, 
id.  ;  John  Hancock,  85:  Madison,  108. 
WEBSTER,  DANIEL.  The  people  erect  what 
government  they  please,  11,  374. 

With  us  all  power  is  in  the  people,  11,  273, 
359. 

Sovereignty  of  government  unknown  in 
North  America,  11,  273,  374. 

The  Constitution  made  a  nation,  52,  290,  368. 

The  Constitution  controls  State  sovereignty, 
42,  52, 160,  201. 

Authority  of  final  decision  in  questions  of 
disputed  power,  19,  52, 160,  293. 

A  "  change  from  a  confederacy,"  etc.,  42, 
152, 160, 186,  385. 

The  dogmas  he  taught  in  1830-1833,  42,  53, 
160,161,211. 

The  people  as  a  nation  ordained  the  Consti- 
tution, id.,  id  ,  171. 

The  "  people  distributed  their  powers,"  etc., 
42,  52,  132. 

As  the  politician  and  the  advocate,  52,  207, 
211,212. 

The  Constitution's  hold  on  the  individual 
conscience  and  individual  duty,  69,  376, 
381. 

The  Union  rests  on  compact  and  plighted 
faith,  52,  59,  209,  210. 

The  only  parties  to  the  Constitution  the  thir- 
teen confederated  States,  5!),  209,  331. 

Fallacy  of  a  new  social  compact,  64,  65,  288. 
289. 

The  sources  of  authority  he  avoids,  87,  88. 

And  the  ratification  of  New  Hampshire,  124. 

The  distribution  of  powers  dogma  at  fault, 
132, 133. 

Washington  vs. ,  id. 

Unwitting  admissions,  137,  358,  359. 

Comparison  of  his  dogmas  with  the  original 
charges,  160, 161. 

"  Body  of  public  convictions,"  165, 166. 

Deplorable  results  of  the  "  convictions,"  165, 
215. 

Ignores  the  States'  action  on  the  Constitu- 
tion, 170. 

On  the  supreme  law,  160,  161,  176. 

Garbles  the  ratifications,  182  et  seq. 

Incorrect  and  deceptive  use  of  authorities, 
e.  g.,  "  the  Federalist,"  185,  186. 

His  own  authorities  confound  him,  186, 187. 

Garbles  the  records  of  the  convention,  197- 
201. 

His  criticism  of  "compact"  and  "accede," 
204  et  seq. 

Constitutional  history  and  the  fathers  against 
him,  205-207. 

The  States  parties  to  a  constitutional  com- 
pact, 208. 

His  views  late  in  life,  207,  208. 

The  compact  equally  binding  on  all,  208. 

His  real  views,  209-211. 

Probable  explanation  of  his  inconsistent  ut- 
terances, 211,212. 

On  "  adroit  [verbal]  substitution,"  242. 

Scope  of  the  Constitution,  and  resort  to  the 
jus  gentium,  275,  358,  369. 

The  States  are  confederated,  208,  209,  286. 

The  Constitution  the  only  bond  of  Union, 
207,  208. 

Inconsistencies  of  his  views  in  1830-1833, 
279. 


606 


IXDEX. 


WEBSTER,  DANIEL  —  continued. 

Qualified  State  sovereignty,  9)1,  314. 

The  letter  to  Baring  Brothers,  314. 

His  only  difference  from  Lincoln ,  315. 

Logic  of  his  views  in  1833,  315,  316. 

Bute  of  verbal  interpretation,  253,  254.  323. 

What  he  could  not  have  believed,  217. 

Our  Union  •'  the  American  confederacy," 
209,330. 

The  States  have  "  exclusive  possession  of 
sovereignty,"  id.,  id. 

The  States  never  thought  "to  consolidate 
themselves  into  one  government."  210, 331. 

Original  idea  of  the  Union,  id.,  id. 

Until   ratified,  the  Constitution   was  but  a 

proposal,  137,  210. 

WEBSTER,  NOAH.     Perverters'  "adroit  sub- 
stitutions "  in  dictionary  of,  242  et  seq. 

A  centralizing  propaganda,  id. 

Its  aim  to  produce  a  desired  usage  and  ' '  pub- 
lic convictions,"  242,  243. 

Character  and  political  views  of,  243,  244. 

Relation  of  the  citizen  to  the  body  politic, 
244. 

The  sovereign  power,  bill  of  rights  not  neces- 
sary, States  sovereign  in  the  Union,  244, 
245. 

No  right  to  make  perpetual  Constitutions, 
244. 

No  coercion  of  States,  383. 

The  Union  is  to  preserve  the  States,  244,  245. 

Federal  officials  agents  of  the  States,  246. 

The  new  Constitution  a  league,  245,  246. 

The  counterfeit  definitions  of,  paralleled  with 
the  originals,  246-25L 


WEBSTER,  NOAH  —  continued. 
A  summary  of  his  political  teachings,  252. 
The  shameful  desecration  of  his  great  achieve- 
ment, 252,  253. 
High  value  of  contemporaneous  exposition, 

253,254. 

WILSON,  JAMES.    The  absolute  sovereignty 
never  goes  from  the  people,  11,  101,  359, 
374. 
Statement  of  the  character  of  the  Union,  45, 

The    States    independent    sovereignties,  45. 
102. 

The  system  proposed  by  the  federal  conven- 
tion, 45,  46,  102,  237/238. 

A  bill  of  rights  superfluous,  237. 

A  confederacy  of  sovereignties,  101,  102. 

The  general  government  a  federal  body  of 
our  own  creation,  45,  103,  237. 

His  views  indorsed  by  Washington,  237. 

Our  American  polity  —  exposition,  303,  304. 

An  incontrovertible  American  doctrine,  329, 
390. 

The  people  ordain  and  establish  —  they  can 
repeal  and  annul,  390,  391. 

Constitutions  dispense  powers  for  public  wel- 
fare. 390. 

WOLCOTT,   OLIVER.      The    States    are    the 
members  of  the  Union,  90. 

The  pillars  that  uphold  the  system,  id. 
WORDS.    How  well-known,  must  be    taken, 
253,  254,  323. 

"  Expounders,"  juggling  with,  242,  243. 

Arguing  from  false,  317. 

tt  Expounding,"  364. 


University  Press  :   John  Wilson  &.  Son,  Cambridge. 


YP.  08692 


ill 


